Recent Decisions

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

IN THE INTEREST OF M.G.N. and A.C.N., Minor Children

The trial court, in this child custody modification suit, did not err by proceeding to trial with 11 jurors after finding one juror statutorily disqualified based on bias or prejudice under Texas Government Code §62.105(4) and another constitutionally disabled. The trial court excluded evidence of an alleged restaurant confrontation between the mother and another person that was offered to corroborate allegations of her alleged confrontational behavior, her alleged “in your face” attitude and alleged road rage incidents. The trial court did not abuse its discretion in excluding under Texas Rule of Evidence 403 by finding that the relevance was outweighed by the danger of opening the door to pre-MSA evidence. The appellant’s objection to non-segregated attorney’s fees was waived, because the issue was tried before the trial court and the appellant raised the issue in a motion for new trial. The trial court’s judgment is affirmed. IN THE INTEREST OF M.G.N., San Antonio Court of Appeals, No. 04-12-00108-CV, 7/29/15.

04-12-00108-CV
Patricia O. Alvarez

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Aghil ANSARI, Appellant v. The STATE of Texas, Appellee

The state presented three scenarios that would have permitted the jury to convict the appellant of the charged alleged offense. Given the state's evidence, the trial court erred when it denied the appellant’s requested incident-unanimity instruction, permitting the jury to convict on less than a unanimous verdict. It is unclear whether the jury was unanimous in finding the appellant guilty of any one of the three offenses alleged in the charge. The appellant suffered some harm. The trial court’s judgment is reversed and remanded. ANSARI v. STATE, San Antonio Court of Appeals, No. 04-14-00728-CR, 8/5/15.

04-14-00728-CR
Marialyn Barnard

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

DANIEL HERNANDEZ, APPELLANT v. THE STATE OF TEXAS, STATE

The appellant challenges the sufficiency of the evidence in an alleged aggravated assault conviction. The complainant’s testimony that the appellant told him he was "going down" was sufficient, without corroboration, to establish a threat. The trial court’s judgment is affirmed, and a motion to withdraw is granted on a related unlawful possession of a firearm conviction. DANIEL HERNANDEZ, APPELLANT v. THE STATE OF TEXAS, STATE

02-13-00196-CR, NO. 02-13-00197-CR
ANNE GARDNER

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

THOMAS JEFFERSON SMALLWOOD, JR., APPELLANT v. THE STATE OF TEXAS, STATE

The appellant argues that the evidence is insufficient to support the jury's determination that, during the alleged aggravated sexual assaults, he placed the complainant in fear that death or serious bodily injury would be imminently inflicted on her. The appellant’s argument that the threats were not imminent because they were conditional relies on a former version of the statute; further, because the complainant was a child and not competent to consent to sexual conduct, the threat went only to the aggravating element that elevated the offense to a higher grade of felony and therefore a higher range of punishment. The trial court did not abuse its discretion in denying the appellant’s request to present evidence of rumors that the complainant made false rape accusations. The trial court’s judgments are affirmed. SMALLWOOD v. STATE, Fort Worth Court of Appeals, No. 02-13-00532-CR, 8/6/15.

02-13-00532-CR
LEE ANN DAUPHINOT

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

IN THE INTEREST OF A.M.D., A CHILD

The appellant challenges the trial court's order terminating her parental rights to her child. Counsel filed an Anders brief. Based on an independent review of the record, the court of appeals concludes that a reasonable fact finder could have formed a firm belief or conviction that grounds for termination existed in compliance with Texas Family Code §161.001 and that termination of the appellant’s parental rights was in the child's best interest. The trial court’s order is affirmed and counsel’s motion to withdraw is granted. IN THE INTEREST OF A.M.D., Amarillo Court of Appeals, No. 07-15-00134-CV, 7/30/15.

07-15-00134-CV
Patrick A. Pirtle

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

NANCY SUE MORRISON, APPELLANT v. SHERIFF WESLEY CRITES AND DEPUTY D.B. MARCOLESCO, APPELLEES

The appellant filed, in justice court, a pleading entitled “motion to recover full amount of judgment” alleging that a sheriff and deputy prevented her from recovering the full amount of damages ordered in a default judgement of that court. After the justice court denied the motion, the appellant filed a notice of appeal in the justice court and the county court. By seeking to recover by motion the full amount of her justice court judgment from the sheriff and deputy, the appellant relied on a superseded statute, and sought a post-judgment remedy not provided by current law. Claims for damages under Texas Civil Practice and Remedies Code §34.065 must be brought as a separate suit. The appellant’s motion, unauthorized by statute, was merely a post-judgment motion incident to the writ of execution that was not appealable. The county court’s order is vacated and the attempted appeal is dismissed. MORRISON v. CRITES, Amarillo Court of Appeals, No. 07-14-00317-CV, 7/28/15.

07-14-00317-CV
James T. Campbell

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

IN RE J. RAINS, ANNUITANT

The beneficiary of a structured settlement sold her interest to a factor. The effective rate of return to be received by the factor approximated 17.4%. The trial court approved the transaction over the objection of an insurance company, the entity that provided the annuity. There is no bright line establishing the best interest of the payee. Missing from the evidence here is: net income, the beneficiaries’ education and business acumen, the current and prospective financial needs of the beneficiary and her family, the nature of her prospective home addition and the need for same. The beneficiary did not seek independent legal or financial advice about the transaction, nor did she expend much effort to investigate alternatives to simply selling a portion of the annuity. There was no evidence concerning how the 17.4% rate was derived. The trial court had no authority to order the insurance company to "forward the entire amount of each structured settlement payment that includes the Assigned Payment to Transferee with Transferee to retain each Assigned Payment and remit the remainder of each payment to the Payee." The trial court’s orders are reversed and remanded. IN RE J. RAINS, Amarillo Court of Appeals, No. 07-14-00132-CV, 8/5/15.

07-14-00132-CV
Brian Quinn

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

EVANGELOS PAGONIS, APPELLANT v. CATHERINE THOMAS, APPELLEE

A county court, on trial de novo from justice court, granted a motion to dismiss the appellant’s suit. Texas Rule of Civil Procedure 506.1(a) makes it clear that another sworn statement of inability to pay must be filed — or re-filed, if using the same statement —with the justice court within 21 days after judgment was signed in that court. Only when a party files a bond, cash deposit, or statement of inability to pay does he perfect an appeal from a justice court's judgment. In the absence of a perfected appeal, the county court was without jurisdiction to entertain the appeal from the justice court's dismissal. The county court’s judgment is vacated and the appeal is dismissed for want of jurisdiction. PAGONIS v. THOMAS, Amarillo Court of Appeals, No. 07-15-00090-CV, 8/10/15.

07-15-00090-CV
Mackey K. Hancock

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

IN THE INTEREST OF K.D., A MINOR CHILD

A mother, the appellant, relinquished her parental rights to a child as part of a mediated settlement with the Texas Department of Family and Protective Services. As a defense to the affidavit of relinquishment, there was no evidence the Department (1) knew that any statements made during the a permanency hearing or the mediation were false or (2) recklessly made any statement without knowledge of its veracity. Whether fraud is a defense to a mediated settlement agreement is unresolved, but the same facts that were insufficient to show the affidavit was induced by fraud would also be insufficient to challenge the MSA. While the affidavit of relinquishment is relevant to the best interest inquiry, such a relinquishment is not ipso facto evidence that termination is in the child's best interest. The trial court was not bound by the parties' agreement that termination was in the child’s best interest. The trial court’s judgment is affirmed in part, the best interest finding is reversed and remanded for a new trial. IN THE INTEREST OF K.D., Texarkana Court of Appeals, No. 06-15-00012-CV, 7/29/15.

06-15-00012-CV
Ralph K. Burgess

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

WARREN WHISENHUNT, Appellant v. MATTHEW LIPPINCOTT AND CREG PARKS, Appellees

Applying the Texas Citizens Participation Act, the trial court dismissed the appellant’s claims except the claim for defamation and awarded attorney’s fees to the appellees. The trial court's conclusion that the appellant failed to make a prima facie case on his dismissed claims did not necessarily dispose of his motion for limited discovery because the court could have granted limited discovery, but still dismissed the claims. The trial court's ruling on the motion to dismiss did not operate as an implicit denial of the appellant’s motion for limited discovery, so by failing to secure a ruling on the motion for limited discovery, the appellant failed to preserve error. The commercial speech exemption does not apply here — for the exemption to apply, the statement must be made for the purpose of securing sales in the goods or services of the person making the statement. The trial court’s judgment is affirmed. WHISENHUNT v. LIPPINCOTT, Texarkana Court of Appeals, No. 06-13-00051-CV, 8/11/15.

06-13-00051-CV
Bailey C. Moseley

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

DENETRA MARIE HARRIS, Appellant v. THE STATE OF TEXAS, Appellee

The trial court appointed counsel to represent the appellant on appeal, but found she is not indigent and that she was financially able to pay a portion of the fees of her appointed trial counsel. By failing to raise in the trial court her claim that the trial court lacked legal authority to condition an appeal bond on her payment of the fees of her appointed trial counsel, the appellant waived that point of error. The legal sufficiency of the indigency finding may be challenged on appeal without first raising it in the trial court. Although the appellant made a prima facie showing of indigence, the trial court was entitled to disbelieve the appellant’s allegations because of conflicting evidence or because the evidence submitted was suspect or incomplete. The trial court’s judgment and sentence are affirmed. HARRIS v. STATE, Texarkana Court of Appeals, No. 6-14-00162-CR, 7/31/15.

06-14-00162-CR
Ralph K. Burgess

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

Graphic Packaging Corporation, Appellant v. Glen Hegar, Comptroller of Public Accounts of The State of Texas; and Ken Paxton, Attorney General of The State of Texas, Appellees

A taxpayer, the appellant, does not own or operate any manufacturing operations in Texas and only engages in retail and wholesale activities in Texas. The comptroller concluded that the taxpayer was required to use the single-factor formula in Texas Tax Code §171.106(a), then denied the taxpayer’s refund claims and assessed additional franchise tax, penalty and interest for under-reporting. The franchise tax is not a tax imposed or measured by net income and, therefore, does not fall within chapter 141's definition of an income tax. Therefore, the taxpayer was required to use the single-factor formula in §171.106(a). The district court’s summary judgment in favor of the comptroller is affirmed. Graphic Packaging Corp. v. Hegar, Austin Court of Appeals, No. 03-14-00197-CV, 7/28/15.

03-14-00197-CV
Melissa Goodwin

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

COX OPERATING, L.L.C., Plaintiff - Appellee v. ST. PAUL SURPLUS LINES INSURANCE COMPANY, Defendant - Appellant

After reimbursing it’s insured for over $1.4 million of its costs, the insurer filed suit seeking a declaration that the remainder of the insured’s costs were not "pollution clean-up costs" covered by the policy. The insured counterclaimed. The district court entered judgment for the insured. In analyzing whether a notice provision is non-waivable, the dispositive question is whether, considering the contract as a whole, the parties objectively intended for that requirement to be a nonwaivable part of the definition of the scope of coverage. A violation of any of the deadlines in the Texas Prompt Payment of Claims Act — including a violation of the Texas Insurance Code §542.055(a) deadline — begins the accrual of statutory interest under §542.060. The district court’s judgment is affirmed. COX OPERATING L.L.C. v. ST. PAUL SURPLUS LINES INSURANCE CO., 5th U.S. Circuit Court of Appeals, No. 13-20529, 7/30/15.

13-20529
E. GRADY JOLLY

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

SAMUEL T. WILLIAMS, Individually; KOURTNEY BYNUM, Individually; DONALD REED, SR., Individually and on Behalf of the Wrongful Death Beneficiaries of Donald Reed, Jr.; JUDY THOMPSON, Individually and on Behalf of the Wrongful Death Beneficiaries of Donald Reed, Jr., PlaintiffsAppellees, v. SHARON HAMPTON, DefendantAppellant.

Three inmates were attacked by other prisoners. A jury found that a corrections officer was deliberately indifferent to the safety of the victims of the attacks. There is no direct evidence that the officer actually knew that there was an excessive risk to inmate safety or that she disregarded such a risk. The amount of time that the officer had within which to appreciate the risk of harm and to draw an inference regarding the nature of that risk is a factor in the analysis. Liability cannot be imposed merely because the officer was allegedly aware that inmates have attacked other inmates in the past. When the facts and circumstances presented by a plaintiff do not permit an inference that the defendant actually perceived the risk, expert opinion based on those same facts and circumstances cannot provide the missing Farmer link of subjective awareness. The district court’s judgment is reversed. WILLIAMS v. HAMPTON, 5th U.S. Circuit Court of Appeals, No. 12-60933.

12-60933
PRISCILLA R. OWEN

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

KEVIN WALLACE, PlaintiffAppellant, v. TESORO CORPORATION, DefendantAppellee.

The appellant contends that the appellee terminated his employment for engaging in protected activity under the Sarbanes-Oxley Act of 2002. For the exhaustion standard in SOX-retaliation cases, the scope of a judicial complaint is limited to the sweep of the OSHA investigation that can reasonably be expected to ensue from the administrative complaint. By failing entirely to reference a distinct category of protected activity in his OSHA complaint, the appellant did not file a complaint whose investigation would reach that activity. The appellant has sufficiently pleaded that he thought an accounting practice violated SEC rules; the objective reasonableness of an employee's belief under SOX cannot be resolved as a matter of law if there is a genuine issue of material fact. Nothing in SOX or Federal Rule of Civil Procedure 9(b) suggests that a reasonable belief of alleged fraud must be pleaded with particularity. The district court’s judgment of dismissal is affirmed in part, reversed in part and remanded. WALLACE v. TESORO CORP., 5th U.S. Circuit Court of Appeals, No. 13-51010, 7/31/15.

13-51010
JERRY E. SMITH

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

FIREFIGHTERS' RETIREMENT SYSTEM; MUNICIPAL EMPLOYEES RETIREMENT SYSTEM OF LOUISIANA; NEW ORLEANS FIREFIGHTERS' PENSION & RELIEF FUND, Plaintiffs - Appellees [...] v. CITCO GROUP LIMITED; CITCO FUND SERVICES (CAYMAN ISLANDS), LIMITED; CITCO BANKING CORPORATION, N.V.; CITCO FUND SERVICES (EUROPE), BV; CITCO (CANADA), INCORPORATED; CITCO TECHNOLOGY MANAGEMENT, INCORPORATED; CITCO BANK NEDERLAND, N.V. DUBLIN BRANCH; CITCO GLOBAL CUSTODY, N.V.; CITCO FUND SERVICES (BERMUDA), LIMITED; FLETCHER ASS [...]

Plaintiffs-Appellees, Louisiana resident pension funds, invested in a leveraged feeder fund located in the Cayman Islands. The Leveraged Fund was part of a larger fund, the Arbitrage Fund. The master fund entity, of which the Leveraged Fund and the Arbitrage Fund were a part, filed a Chapter 11 voluntary petition for bankruptcy. Plaintiffs accused the defendants of violating various Louisiana securities laws, among other state law claims. The suit was removed to federal district court. The Leveraged Fund and the Arbitrage Fund, through Cayman liquidators, filed voluntary petitions under Chapter 15. The district court permissibly abstained and remanded. The district court did not address diversity jurisdiction or the Chapter 15 bankruptcies in the order. Because the district court could not permissively abstain and equitably remand under 28 U.S.C. §§1334(c)(1) and 1452(b) without considering the Chapter 15 bankruptcies, the district court’s decision is reversed and remanded for consideration under its bankruptcy jurisdiction. FIREFIGHTERS' RETIREMENT SYSTEM v. CITCO GROUP LIMITED, 5th U.S. Circuit Court of Appeals, No. 14-30857, 8/6/15.

14-30857
HAYNES

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

RON FERRARO; PATRICIA FERRARO, PlaintiffsAppellants v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, DefendantAppellee

Homeowners, the appellants, sued their insurer to recover flood-insurance proceeds after their house was damaged by Hurricane Isaac. The appellants submitted an original signed, sworn proof of loss with the handwritten note "Will send supplement later." They later sought payment from the insurer for the supplemental amount without providing a second proof of loss. An insured must submit an additional proof of loss to recover an additional amount on a preexisting claim. The district court’s judgment is affirmed. FERRARO v. LIBERTY MUTUAL FIRE INSURANCE CO., 5th U.S. Circuit Court of Appeals, No. 14-30944, 8/6/15.

14-30944
EDWARD C. PRADO

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

NICOLE BURTON, Plaintiff - Appellant v. FREESCALE SEMICONDUCTOR, INCORPORATED; MANPOWER OF TEXAS, L.P.; MANPOWER, INCORPORATED; TRANSPERSONNEL, INCORPORATED, Defendants - Appellees

The appellant brought claims against her former employer alleging discriminatory termination and retaliation. A staffing agency is liable for the discriminatory conduct of its joint-employer client if it participates in the discrimination, or if it knows or should have known of the client's discrimination but fails to take corrective measures within its control. The defendants reasons for the decision to terminate that was provided to the EEOC postdate the decision to terminate her. This gives rise to an inference of pretext. A lack of contemporaneous documentation coupled with evidence that such documentation should exist is additional circumstantial evidence of pretext. The judgment is reversed in part, affirmed in part, and remanded. BURTON v. FREESCALE SEMICONDUCTOR INC., 5th U.S. Circuit Court of Appeals, No. 14-50944, 8/10/15.

14-50944
REAVLEY

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

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

The appellant was convicted of allegedly burning a car containing a body with the intent to impede, obstruct, and influence a federal investigation. By light of Yates, the appellant’s actions do not violate 18 U.S.C. §1519 — neither a car nor a corpse are used to record or preserve information or are similar to records or documents. That count is vacated. Although Department of Justice employees not directly involvied in the case made anonymous postings about the proceedings in the comments section of various NOLA.com articles, the district court did not err in denying a motion for new trial on that basis. The district court’s denial of new trial is affirmed, the conviction for violating §1519 is vacated and the case is remanded for resentencing. UNITED STATES v. McRAE, 5th U.S. Circuit Court of Appeals, No. 14-30995, 7/28/15.

14-30995
PATRICK E. HIGGINBOTHAM

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

JERMAINE AMANI THOMAS, also known as Jermaine Thomas, Petitioner v. LORETTA LYNCH, U. S. ATTORNEY GENERAL, Respondent

The petitioner, who was born on a United States military base located in what is now Germany, argues that he is not removable because he is a United States citizen by virtue of the 14th Amendment. The 14th Amendment's grant of birthright citizenship contains an express geographical limitation, which does not encompass the military base where the petitioner was born. The petition for review is denied. THOMAS v. LYNCH, 5th U.S. Circuit Court of Appeals, No. 14-60297, 8/7/15.

14-60297
KING

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SANDRA RIVERA, Defendant - Appellant.

This opinion denying rehearing clarifies that making the seriousness of the offense constituting the supervised release violation and the need for just punishment dominant factors in the revocation sentence was error. However, precisely to what extent a district court may rely on the seriousness of the offense in applying the other 18 U.S.C. §3583(e) factors and the Sentencing Guidelines is not addressed. UNITED STATES v. RIVERA, 5th U.S. Circuit Court of Appeals, No. 14-40389, 8/7/15.

14-40389

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

KINSALE INSURANCE COMPANY, Plaintiff - Appellee v. GEORGIA-PACIFIC, L.L.C., Defendant - Appellant

An insurance policy covered a demolition company and, as additional insured, the owner of the property to be demolished. A fire at the property damaged equipment leased by the demolition company. The demolition company filed a third-party demand against the property owner, alleging that the property owner was liable because it had exclusive control of the premises when the fire occurred. An exclusion in the policy requires that the claim or suit for property damage be brought by one of the insureds against another insured. The district court applied the exclusion because the court concluded that the demolition company’s third-party demand was both a suit and a civil proceeding that essentially seeks reimbursement for a damages claim. The claim is for indemnity, not for property damage, so the exclusion is inapplicable. The district court’s judgment is reversed and remanded. KINSALE INSURANCE CO. v. GEORGIA-PACIFIC L.L.C., 5th U.S. Circuit Court of Appeals, No. 14-60770, 7/27/15.

14-60770
LESLIE H. SOUTHWICK

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. AUTRY LEE JONES, Defendant - Appellant.

The district court granted a motion for reduction of sentence pursuant to pursuant to 18 U.S.C. §3582(c)(2). The petitioner filed a 28 U.S.C. §2255 motion, alleging that counsel at his original trial rendered ineffective assistance. A §3582(c)(2) sentence reduction does not result in a new judgment, but rather only in the modification of an existing one, and a petitioner may not thereby avoid the requirements for filing second or successive habeas applications. The district court’s transfer order is affirmed, and the clerk is directed to notify the petitioner that he must file a motion for authorization to file a successive application. UNITED STATES v. JONES, 5th U.S. Circuit Court of Appeals, No. 13-50475, 8/4/15.

13-50475
JENNIFER WALKER ELROD

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

MARC VEASEY; JANE HAMILTON; SERGIO DELEON; FLOYD CARRIER; ANNA BURNS; MICHAEL MONTEZ; PENNY POPE; OSCAR ORTIZ; KOBY OZIAS; LEAGUE OF UNITED LATIN AMERICAN CITIZENS; JOHN MELLOR-CRUMMEY, KEN GANDY; GORDON BENJAMIN, EVELYN BRICKNER, Plaintiffs Appellees, TEXAS ASSOC [...] v. GREG ABBOTT, in his Official Capacity as Governor of Texas; CARLOS CASCOS, Texas Secretary of State; STATE OF TEXAS; STEVE MCCRAW, in his Official Capacity as Director of the Texas Department of Public Safety, Defendants Appellants;

This appeal concerns a challenge to Texas’ SB 14, requiring voters to present certain specific forms of identification at the polls. In its discriminatory purpose analysis, the district court erred in its reliance on long-ago history,and on post-enactment speculation by opponents. The plaintiffs' discriminatory purpose claim is vacated and remanded. The district court's finding that SB 14 has a discriminatory effect under the Voting Rights Act is affirmed. The district court’s holding that SB 14 is a poll tax is vacated and judgment on that claim is rendered for the state. VEASEY v. ABBOTT, 5th U.S. Circuit Court of Appeals, No. 14-41127, 8/5/15.

14-41127
HAYNES

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee v. ANDREA LEWIS, Defendant - Appellant

The appellant was convicted of allegedly transporting persons under the age of 18 years across state lines with the intent that they engage in criminal sexual activity. He appeals the district court's admission of evidence that he committed uncharged sexual assaults against minors. The Federal Rule of Evidence 413 evidence that the appellant alegedly had sex with two additional underage girls was highly probative of his proclivity for having sex with underage girls; the evidence was probative for impeaching his testimony that he did not like oral sex; the evidence showed the appellant’s modus operandi in the selection of his alleged victims. The district court did not clearly abuse its discretion by implicitly holding that the high probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. The district court’s judgment is affirmed. UNITED STATES v. LEWIS, 5th U.S. Circuit Court of Appeals, No. 14-30898, 8/10/15.

14-30898
EDITH BROWN CLEMENT

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BODIE S. KNAPP, doing business as The Wild Side, Petitioner v. UNITED STATES DEPARTMENT OF AGRICULTURE, Respondent

The United States Secretary of Agriculture fined the petitioner $395,900 after finding that he bought and sold regulated animals without a license, in violation of the Animal Welfare Act. While an animal's use for breeding is relevant to the determination of whether that animal is a farm animal, there is no separate categorical exception for all animals purchased for breeding purposes. In calculating a penalty, neither the statute nor the regulations require consideration of financial status. To successfully bring a selective enforcement claim, the petitioner must show that the agency's enforcement was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. The petition is granted in part and denied in part, and remanded for further explanation of the judicial officer’s classification decisions and a conclusion that a sale was for a regulated purchase. KNAPP v. U.STATES DEPARTMENT OF AGRICULTURE, Respondent

14-60002
STEPHEN A. HIGGINSON

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

ESTATE OF WILBERT LEE HENSON, deceased; BARBARA KAY HENSON REED, Individually and on behalf of Estate of Wilbert Lee Henson; IWILLER G HENSON HENDRIX; WILMA LYNN HENSON; SHELISHA RICHARDSON, Plaintiffs - Appellants v. WICHITA COUNTY, TEXAS; DOCTOR DANIEL BOLIN, Defendants - Appellees

The court of appeals previously held that a nurse and a sheriff were entitled to qualified immunity in this suit alleging a 42 U.S.C. §1983 violation for the death of a person in pretrial detention. The district court subsequently granted summary judgment for the remaining two defendants, a county and a doctor. Because the plaintiffs did not assert a conditions-of-confinement claim against the doctor, and because, even if they had, such claim would fail, the doctor is entitled to summary judgment. There is no evidence that any of the nurses who encountered the decedent acted, or failed to act, out of fear for the doctor. Applying Bell to the claims against the county, the court determines that there is nothing constitutionally deficient about the terms of the county’s health services plan; plaintiffs needed to show more than an isolated incident, but must demonstrate a pervasive pattern of serious deficiencies in providing for basic human needs. The district court’s summary judgment is affirmed. ESTATE OF HENSON v. WICHITA COUNTY, 5th U.S. Circuit Court of Appeals, No. 14-10126, 7/28/15.

14-10126
STEPHEN A. HIGGINSON

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

CLINTON LEE YOUNG, Petitioner - Appellant v. WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent Appellee

The petitioner-appellant requests certificates of appealability related to his conviction of alleged murder. Trial counsel did not learn about an alleged statement regarding a third party’s alleged admission of the crime until after trial, therefore his failure to call that witness can not constitute ineffective assistance of counsel; further, the claim is unexhausted and procedurally barred. Not presenting ballistics evidence that does not demonstrate innocence and is largely irrelevant to the determination of guilt does not arguably constitute inneffective assistance. The COAs are denied, and the denials of petitioner’s other motions are affirmed. YOUNG v. STEPHENS, 5th U.S. Circuit Court of Appeals, No. 14-70011, 7/29/15.

14-70011
EDITH BROWN CLEMENT

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

WAYNE WRIGHT, INDIVIDUALLY, AND WAYNE WRIGHT, LLP, D/B/A WAYNE WRIGHT INJURY LAWYERS, Appellants, v. ERIKA V. HERNANDEZ, Appellee.

A paralegal sued her employer for wrongful termination. The trial court denied the employer’s motion to compel arbitration. The employer submitted two affidavits post-hearing from its human resources manager and its chief of operations to authenticate the arbitration agreement. Texas Rule 270 does not bar the trial court's consideration of the employer’s supplemental affidavits filed after the hearing on the motion to compel arbitration. The evidence affirmatively demonstrates that the trial court intended to allow the employer to file the supplemental affidavits. When there is no evidence in the record to suggest that the parties intended for a signature to be a condition precedent to the signing of an agreement, then a party's failure to sign the agreement does not render the agreement unenforceable, as long as it appears that the parties otherwise gave their consent to the terms of the agreement; the presence of a signature block in a contract, standing alone is insufficient to establish that a party's signature is a condition precedent. The trial court’s order is reversed and remanded. WRIGHT v. HERNANDEZ, El Paso Court of Appeals, No. 08-14-00303-CV, 7/17/15.

08-14-00303-CV
STEVEN L. HUGHES

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

CLEMENTE D. GRANT, Appellant, v. RAYMUNDO ESPIRITU AND DAVID BARNES, Appellees.

The appellant sought damages for the total loss of a vehicle he was driving that was involved in a traffic accident. The trial court granted motions to dismiss based on arguments that the appellant did not own the vehicle and therefore lacked standing. Once the defendants raised the presumption that the appellant did not own the vehicle, the appellant had the burden to produce some evidence in response showing he had some ownership or possessory interest in the vehicle sufficient to maintain his suit. The trial court’s judgment is affirmed. GRANT v. ESPIRITU, El Paso Court of Appeals, No. 08-13-00247-CV, 7/22/15.

08-13-00247-CV
STEVEN L. HUGHES

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

SHAWN KAFTOUSIAN, Appellant, v. NADIA REZAEIPANAH, Appellee.

The appellant claims that the trial court's division of the marital estate was manifestly unjust because it awarded a disproportionate share of the marital estate to the appellee without a reasonable basis for doing so. The trial court could have rightly considered the appellant’s behavior during the pendency of the divorce, which allegedly resulted in protracted litigation and reduced the community assets available for division, in making a just and right division of the property. The trial court found that the appellee "accrued reasonable and necessary attorney fees and costs in the amount of $13,083.00[.]" If the equity in the marital home had been divided evenly, the appellant would have been entitled to $19,336. Subtracting $13,083 from that amount yields $6,253. To divest the appellant of this sum without support in the record for doing so would punish him wrongly. The division of the marital estate is reversed and remanded, the remainder of the divorce decree is affirmed. KAFTOUSIAN v. REZAEIPANAH, El Paso Court of Appeals, No. 08-14-00019-CV, 7/17/15.

08-14-00019-CV
YVONNE T. RODRIGUEZ

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

RANCHERO ESPERANZA, LTD., Appellant/Cross-Appellee, v. MARATHON OIL COMPANY, Appellee/Cross-Appellant.

The appellant sued an oil producer alleging that negligence in plugging a well caused salt water to damage the surface. The trial court determined that the appellant, as a subsequent purchaser of the property, did not have standing to assert its claims for negligence, trespass, and nuisance. There can be a delay between the wrongful act and the first resulting injury, and any cause of action does not accrue until the first injury occurs. The causes of action for surface damages arising from the allegedly deficient plugging of the well did not accrue in 1989 when the appellee plugged the well, but rather accrued in July 2008 when the surface damages first resulted from the alleged deficient plugging. The appellant filed suit over two years' later on July 27, 2010. The type of injury alleged in this case is not inherently undiscoverable. The trial court’s dismissal is reversed and a take-nothing judgment is rendered based on limitations. RANCHERO ESPERANZA LTD. v. MARATHON OIL CO., El Paso Court of Appeals, No. 08-14-00152-CV, 7/24/15.

08-14-00152-CV
STEVEN L. HUGHES

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

EL PASO COMMUNITY COLLEGE DISTRICT, Appellant, v. KELLY DURAN, Appellee.

The appellee sued El Paso Community College District pursuant to the Texas Tort Claims Act for a broken shoulder she allegedly sustained while participating in a motorcycle safety class. The instructors did not use or operate the motorcycle, and thus, governmental immunity was not waived as to EPCC under the TTCA. The use or operation must be that of the governmental employee, not that of a third person. There is no evidence that the appellee, unlike the drivers in Morgan and Rubio, was compelled to use or operate a motor-driven vehicle at the behest of a government employee in a position of formal authority. Dismissal is appropriate here because the pleadings and evidence already considered by the trial court-and us-affirmatively negate the existence of jurisdiction. The trial court’s denial of the plea to the jurisdiction is reversed and a dismissal is rendered. EL PASO COMMUNITY COLLEGE DISTRICT v. DURAN, El Paso Court of Appeals, No. 08-14-00179-CV, 7/22/15.

08-14-00179-CV
YVONNE T. RODRIGUEZ

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

VASHTI E. MADDEN, Appellant, v. EL PASO INDEPENDENT SCHOOL DISTRICT, Appellee.

The appellant filed suit alleging that her employer, a school district, discriminated against her on the basis of her national origin and gender, then retaliated against her for filing a complaint with the Equal Employment Opportunity Commission. Appellant's bare assertion that the district discriminated against her because she was Hispanic by assigning her to teach mostly Spanish classes is mere conjecture. Appellant’s claim that three new male teachers were given advanced math courses despite being unlicensed is unsupported by the record. That two walk-throughs occured after the appellant filed her EEOC claim does not support her claim of retaliation: a reasonable employee might assign significance to a walk-through, but not consider it materially adverse to the point of dissuading a complaint. The trial court’s judgment is affirmed. MADDEN v. EL PASO INDEPENDENT SCHOOL DISTRICT, El Paso Court of Appeals, No. 08-13-00169-CV, 7/22/15.

08-13-00169-CV
YVONNE T. RODRIGUEZ

COURT OF APPEALS OF TEXAS, ELEVENTH DISTRICT, EASTLAND

THE STATE OF TEXAS, Appellant v. LISA ANN PETERSEN, Appellee

The state appeals the trial court’s order granting a motion to suppress the appellant’s statements in response to questioning by police officers and a store security guard. The guard stopped the appellant at the store exit, told her the police were on the way, and questioned the appellant. According to the guard, the appellant admitted to shoplifting, but the guard could not recall her exact words. Appellee had the burden of establishing an agency relationship between the store guard and the police. Only one Wilkerson factor weighs in favor of a finding of agency: the purpose of the interview was to prosecute the appellant for theft. The trial court’s order is reversed and remanded. STATE v. PETERSEN, Eastland Court of Appeals, No. 11-14-00064-CR, 7/16/15.

11-14-00064-CR
JOHN M. BAILEY

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

ADAM C. LEONARD, Appellant v. SALINAS CONCRETE, LP, Appellee

The appellee, a Texas resident, asserted claims against the appellant for breach of fiduciary duties during and after his employment, breach of written and oral contracts, quantum meruit, and tortious interference with an existing business relationship. The appellant contends the trial court erred by concluding he had sufficient minimum contacts with Texas to warrant the exercise of personal jurisdiction over him.The appellant, a nonresident, initiated contact with a Texas company to inquire about employment and signed an employment agreement with provisions respecting performance and enforceability in Texas. The exercise of personal jurisdiction as to the claim for breach of written contract was proper. The record does not show that any of the five remaining claims is specifically based on any provision of the agreement: the Texas contacts alleged are not sufficiently related to the operative facts of those five claims to support specific jurisdiction. The trial court’s judgment is affirmed in part, reversed in part, rendered in part, and remanded. LEONARD v. SALINAS CONCRETE LP, Dallas Court of Appeals, No. 05-14-01584-CV, 7/21/15.

05-14-01584-CV
DOUGLAS S. LANG

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

MANSIK & YOUNG PLAZA LLC, YOUNG HO KIM, SUN HUI KIM, AND DAVID KIM, Appellants v. K-TOWN MANAGEMENT, LLC D/B/A KTN US; IP INVESTMENTS, LTD.; ODES H. KIM; JI HONG PARK; AND CHUL SEUNG PARK, Appellees

The trial court granted the appellee’s motion to dismiss under the Texas Citizens Participation Act. The trial court denied the appellees' motion to raise the amount of the cash deposit in lieu of a supersedeas bonr to include the attorney's fees awarded under the TCPA. The analysis under Nalle Plastics and Corral-Lerma applies to attorney's fees awarded under the TCPA; attorney’s fees are not compensatory damages. The trial court’s order is affirmed. MANSIK & YOUNG PLAZA LLC v. K-TOWN MANAGEMENT LLC, Dallas Court of Appeals, No. 05-15-00353-CV, 7/24/15.

05-15-00353-CV
CAROLYN WRIGHT

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

BLACKSTONE MEDICAL, INC. D/B/A ORTHOFIX SPINAL IMPLANTS, Appellant v. PHOENIX SURGICALS, L.L.C., Appellee

The trial court denied the appellant’s motion for a directed verdict and motion for judgment notwithstanding the verdict. The appellee challenges the trial court’s refusal to award all of its attorney’s fees. The appellee’s attorney based his firm's time estimates on generalities such as the amount of discovery in the case, and a general description of the factual allegations and the causes of action involved in the case. The attorney’s affidavit provided none of the specificity needed for the trial court to make a meaningful lodestar determination. The trial court’s judgment is affirmed. BLACKSTONE MEDICAL INC. v. PHOENIX SURGICALS L.L.C., Dallas Court of Appeals, No. 05-13-00870-CV, 7/22/15.

05-13-00870-CV
DOUGLAS S. LANG

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

TOBY PAUL COUCHMAN AND PRO-SURV, Appellants v. ELIZABETH CARDONA, Appellee

The appellants argue that the trial court abused its discretion by denying their motion to dismiss in the underlying suit because the appellee did not file a certificate of merit with the petition in the earlier suit. The statute provides, then, that in an action brought by the plaintiff, the affidavit-known as the certificate of merit-must be filed with the petition in that action. The statute does not extend the limitation to any subsequently-filed case. The trial court’s order is affirmed. COUCHMAN v. CARDONA, Houston’s 1st Court of Appeals, No. 01-14-01000-CV, 7/23/15.

01-14-01000-CV
Laura Carter Higley

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

STACY J. WILLIAMS, Appellant v. T. NICHOLE MAI, Appellee

The appellant in this matter involving judicial partition moved for new trial on the basis that the trial court’s decree confirming the commissioner’s report erroneously stated that the commissioners' report was filed on August 13, 2013. The appellant, who had objected to the preliminary replat before entry of judgment, was unable to object to the commissioners' report and have a trial of the issues as she is allowed to do under Texas Rule of Civil Procedure 771. The trial court abused its discretion. The trial court’s judgment is reversed and remanded. WILLIAMS v. MAI, Houston’s 1st Court of Appeals, No. 1-14-00735-CV, 7/21/15.

01-14-00735-CV
Rebeca Huddle

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

LAJUAN CECILE BAILEY, Appellant v. THE STATE OF TEXAS, Appellee

A jury convicted the appellant of failure to appear as required for a pretrial hearing. A waiver of privilege is narrowly construed, and the appellant’s reasonable-mistake defense was not a blanket waiver of all attorney-client communications, including ones unrelated to the mistake defense. But by pursuing a strategy and persistently arguing that she had a reasonable excuse for her failure to appear based on her communications with her lawyer, the appellant placed all her communications with the lawyer relevant to that particular subject at issue. The trial court’s judgment is affirmed. BAILEY v. STATE, Houston’s 1st Court of Appeals, No. 01-12-00200-CR, 7/23/15.

01-12-00200-CR
Michael Massengale

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

FRANCIE WILLIS, Appellant v. BPMT, LLC, Appellee

The appellee sued an appellant in her capacity as a corporate officer of the company, seeking to hold her personally liable for part of a debt connected to the alleged breach of a lease agreement. The trial court held the corporate officer liable for part of the debt under Texas Tax Code §171.255. A debt is both created and incurred for purposes of §171.255 at the time a lease agreement is executed, even if the amount of the debt is uncertain. Given also that the statute is penal in nature and therefore must be construed in favor of the corporate officer, and the Legislature's repeal of the contrary definition on which the appellee relies, the debt in this case was created and incurred before the events leading to corporate forfeiture. The trial court’s judgment is reversed and rendered. WILLIS v. BPMT LLC, Houston’s 1st Court of Appeals, No. 01-14-00537-CV, 7/23/15.

01-14-00537-CV
Michael Massengale

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

IN RE MARK ATHANS, OMAR MARTINEZ, AND PRESTIGE SURGICAL ASSISTANTS, LLC, Relators

The relators seek to set aside the grant of a motion for new trial. The relators were sued by their former employee on allegations that they solicited other employees to leave for other employment. To the extent the trial court granted new trial on the jury’s answer of “no” to the question of whether the relators complied with the fiduciary duty owed to their employer, that was error. It was not appropriate for the trial court to grant a new trial based on charge error when no party preserved that charge error for appellate review. It was not appropriate for the trial court to grant a new trial based on alleged statements made by counsel during voir dire when no party preserved that alleged error. The writ of mandamus is conditionally granted. IN RE: ATHANS, Houston’s 14th Court of Appeals, No. 14-15-00143-CV, 7/15/15.

14-15-00143-CV
Kem Thompson Frost

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

DIAMOND OFFSHORE SERVICES LIMITED AND DIAMOND OFFSHORE SERVICES COMPANY, Appellants v. WILLIE DAVID WILLIAMS, Appellee

The appellee allegedly injured his back while trying to repair a piece of machinery on board an offshore oil rig owned and operated by the appellant. The trial court could have reasonably determined that a proffered post-accident video, which contained clips from three different days of surveillance edited together into one continuous hour-long video and depicted the appellee performing activities that he admitted that he could do, albeit with pain later, created an impression that he could engage in physical activity for long periods of time without needing rest and without apparent pain and thus that the prejudicial effect of the video outweighed the video's probative value. The trial court’s judgment is affirmed. DIAMOND OFFSHORE SERVICES LIMITED v. WILLIAMS, Houston’s 1st Court of Appeals, No. 01-13-01068-CV, 7/21/15.

01-13-01068-CV
Sherry Radack

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

MELISSA DROMGOOLE, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges the denial of her motion to suppress and the admission of blood test evidence. Even assuming the investigating officer excluded the appellant's diagnosis of syncope from his probable cause affidavit intentionally, knowingly, or with reckless disregard for the truth, the inclusion of appellant's diagnosis of syncope in the affidavit would not have defeated a determination of probable cause for the warrant. The appellant failed to establish that simply stating that she had syncope in the context of a field sobriety test and exhibiting faintness or dizziness in the police car were sufficient to carry her burden of adequately disclosing to the officer or the person performing the blood draw that the blood draw would create an unreasonable risk of medical harm due to an existing medical condition. The determination of whether the machine that tested appellant's blood had been properly validated came down to a resolution of conflicting evidence between experts. It was within the trial court’s discretion to resolve that question in favor of the state. The trial court’s judgment is affirmed as modified. DROMGOOLE v. STATE, Houston’s 1st Court of Appeals, No. 01-13-00931-CR, 7/23/15.

01-13-00931-CR
Laura Carter Higley

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

ISMAEL TREVINO, Appellant v. THE STATE OF TEXAS, Appellee

A jury convicted the appellant of aggravated assault of a household member and assessed punishment at 27 years' confinement. A trial court errs by allowing the state to amend the indictment on the day of trial before jury selection. However, a defendant waives this error by failing to object to the amendment. Therefore, such an amendment is voidable, not void. The jury charge accurately followed the amended indictment, which alleged that the complainant was a member of appellant's household. The trial court’s judgment is affirmed. TREVINO v. STATE, Houston’s 14th Court of Appeals, No. 14-14-00262-CR, 7/23/15.

14-14-00262-CR
Sharon McCally

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

CATHY BROCKHAUS PARADOSKI, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges her conviction for allegedly driving while intoxicated. Prescription medications were found in the appellant’s blood, but she argues that a transient ischemic attack caused the impairment. The jury had sufficient evidence that appellant had prescription medication in her system in a quantity that could cause her to lose her mental and physical faculties, and sufficient evidence to reject the argument that she had developed tolerance from chronic therapy. The trial court’s judgment is affirmed. PARADOSKI v. STATE, Houston’s14th Court of Appeals, No. 14-14-00511-CR, 7/16/15.

14-14-00511-CR
Kem Thompson Frost

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

ERIC LOPEZ, Appellant v. THE STATE OF TEXAS, Appellee

The appellant was sentenced to a mandatory sentence of life imprisonment pursuant to Texas Penal Code §12.42(c)(2). The Eighth Amendment does not grant to a criminal defendant the right to present mitigating evidence when the State seeks a term-of-years sentence. The mandatory life sentence imposed under Texas Penal Code Section 12.42(c)(2) is not unconstitutional under either the Eighth or Fourteenth amendments. The trial court’s judgment is affirmed. LOPEZ v. STATE, Houston’s 14th Court of Appeals, No. 14-14-00389-CR, 7/16/15.

14-14-00389-CR
John Donovan

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

MONDEE STRACENER, Appellant v. DOUG STRACENER, BERNICE L. STRACENER AND JOEY KEITH STRACENER, Appellees

The appellant challenges the trial court's judgment in his suit seeking the partition of real property. The appellant contends that, by instructing the commissioners to include a house and one acre in the 68.75 percent portion allocated to him, the trial court effectively changed its first amended decree. The final decree is consistent with the first amended decree. Because mandate has issued on the first amended decree, the appellant is foreclosed from challenging the first amended decree. The trial court's judgment is affirmed. STRACENER v. STRACENER, Texarkana Court of Appeals, No. 06-14-00079-CV, 7/24/15.

06-14-00079-CV
Ralph K. Burgess

Practice Areas: Residential and Commercial Real Estate

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

ORCA ASSETS, G.P., L.L.C.; ORCA/ICI DEVELOPMENT; ORCA PETROLEUM, LTD.; AND ALLEN BERRY, APPELLANTS v. LOUIS DORFMAN; K.I. HOLDINGS, LTD.; SAM MYERS; J.M.D. RESOURCES, INC.; BILLY COGDELL BOWDEN; BARBARA STANDFIELD; STACEY DORFMAN-KIVOWITZ; JULIA DORFMAN; MARK DORFMAN; DAVID PHILLIP COOK; CHERYL KING COOK; SAM Y. DORFMAN, JR.; FRANK MORAVITS, INDIVIDUALLY AND AS TRUSTEE OF THE MORAVITS CHILDREN TRUST NO. 1 AND MORAVITS CHILDREN TRUST NO. 2; SHELBY MORAVITS; AND JERRY KORTZ, APPELLEES AND;

The appellants argue that the trial court's Texas Rule of Civil Procedure 166 order should be reversed because, among other reasons, a 1944 judgment is void and unenforceable. Appellants argue that the district court did not have jurisdiction to enter the 1944 judgment because all parties owning an interest under a 1929 deed and later conveyances connected to that deed were necessary parties to that suit and were not joined. The virtual representation doctrine applies, and a litigant is therefore deemed to be a party (whether or not it requests to be a party), when the litigant will be bound by the judgment, its privity of interest appears from the record, and there is an identity of interest between the litigant and a named party to the judgment. The trial court's order is affirmed. ORCA ASSETS, G.P., L.L.C. v. DORFMAN, Fort Worth Court of Appeals, No. 02-14-00056-CV, 7/16/15.

02-14-00056-CV, NO. 02-14-00057-CV
TERRIE LIVINGSTON

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

ACADIA HEALTHCARE COMPANY, INC.; PSYCHIATRIC RESOURCE PARTNERS, INC.; MICHAEL A. SAUL; TIMOTHY J. PALUS; PETER D. ULASEWICZ; BARBARA H. BAYMA; AND JOHN M. PIECHOCKI, APPELLANTS AND APPELLEES v. HORIZON HEALTH CORPORATION, APPELLEE AND APPELLANT

The appellants, former employees of the appellee, challenge judgment against them on claims including breach of covenants not to solicit, breach of fiduciary duty, intentional interference with the employment agreements, and various intellectual property claims. An expert's calculations, estimates, "statistical analysis," and "work papers" supporting his conclusions were not admitted into evidence and were merely demonstrative aids. That expert's testimony which consisted of unsupported factual assumptions and analyses that were not admitted into evidence, was not competent to show with reasonable certainty that the appellee suffered lost profits as a direct result of the individual defendants' actions. The jury's award of exemplary damages, given the lack of legally sufficient evidence of lost profits, was excessive and unconstitutional. The trial court's judgment is conditionally affirmed in part, reversed in part, and remanded. ACADIA HEALTHCARE COMPANY INC. v. HORIZON HEALTH CORPORATION, Fort Worth Court of Appeals, No. 02-13-00339-CV, 7/23/15.

02-13-00339-CV
LEE GABRIEL

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

IN RE CARLA LORENE COX, RELATOR

The trial court denied the relator's disqualification motion. A law student worked on a cold case in the county prosecutor's office that eventually led to the indictment of the relator. The relator hired an attorney but later discharged him. More than six months later, the discharged attorney hired the law student. The petition for writ of mandamus is denied. IN RE: COX, Fort Worth Court of Appeals, No. 02-15-00132-CV, 7/23/15.

02-15-00132-CV
BONNIE SUDDERTH

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

JESSICA SHANNON, Appellant v. MEMORIAL DRIVE PRESBYTERIAN CHURCH U.S., Appellee

The appellant in this contract dispute alleging that the appellee, a church, disparaged the appellant in violation of a secular settlement agreement, challenges the trial court's grant of the appellee's plea to the jurisdiction and summary judgment motions. The agreement sets forth that the church agrees not to disparage the appellant. A contract in a civil law controversy may be interpreted in purely secular terms when doing so does not require reliance on religious precepts or resolution of a religious controversy. The ecclesiastical abstention doctrine does not apply. The trial court's dismissal of a claim of intentional infliction of emotional distress is affirmed, otherwise, the trial court's judgment is reversed and remanded. SHANNON v. MEMORIAL DRIVE PRESBYTERIAN CHURCH U.S., Houston's 14th Court of Appeals, No. 14-14-00359-CV, 7/21/15.

14-14-00359-CV
Martha Hill Jamison

Practice Areas: Contracts

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

IN RE SHELBY LONGORIA, Relator

The relator challenges the trial court's order denying its motion to dismiss the claims of real party in interest based on a forum-selection clause. The forum-selection clause is very broad, encompassing "any interpretation, dispute, or any aspect related to this Trust." The real party's pre-contractual claim for breach of fiduciary duty implicates the trust and is subject to the forum-selection clause. There would be no alleged breach of fiduciary duty without the trust. The writ of mandamus is conditionally granted, in part and denied in part. IN RE: LONGORIA, Houston's 14th Court of Appeals, No. 14-15-00261-CV, 7/16/15.

14-15-00261-CV
Tracy Christopher

Practice Areas: Contracts

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

ABRAHAM JACOB PROENZA, Appellant, v. THE STATE OF TEXAS, Appellee.

The appellant, during his trial for alleged injury to a child by omission, argued in part that his alleged failure to seek medical care was because he didn’t have proper documentation from the child’s mother. The trial court challenged the testimony of a witness who testified that authorization from the parent was required before a child would be seen at the clinic where she was employed. Comments of the trial court, which tainted not only the defendant’s defensive theory but also the presumption of his innocence in front of the jury or vitiated the jury's impartiality, were fundamental error and required no objection. The appellant’s conviction is reversed and remanded. PROENZA v. STATE, Corpus Christi Court of Appeals, No. 13-13-00172-CR, 7/23/15.

NUMBER 13-13-00172-CR
NELDA V. RODRIGUEZ

Practice Areas: Criminal Law

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

THE STATE OF TEXAS, Appellant, v. CHRISTOPHER SHAWN FELLOWS, Appellee.

This case arises from a criminal conspiracy and money-laundering prosecution related to the an alleged illegal gambling operation. The state challenges the trial court's granting of the motion to dismiss the indictments against appellees because a computer hard drive that was seized by the police in the raid of the establishment was damaged beyond repair while in the state's custody. The most that can be said about the hard drive is that it stored evidence that some sweepstakes entries were free, some customers did not use the entertaining games to redeem sweepstakes entries, and some customers bought store products without redeeming their sweepstakes entries. The evidence would be potentially useful, but not exculpatory and material. As to materiality, the state made available comparable evidence. The trial court’s order is reversed and remanded. STATE v. FELLOWS, Corpus Christi Court of Appeals, No. 13-14-00283-CR, 7/23/15.

NUMBER 13-14-00283-CR, NUMBER 13-14-00284-CR, NUMBER 13-14-00285-CR
NELDA V. RODRIGUEZ

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

Ex parte James Richard "Rick" Perry

The appellant, a former Governor of Texas, sought dismissal through a pretrial writ of habeas corpus, of two pending criminal charges ("abuse of official capacity" and "coercion of a public servant") that are predicated on alleged acts preceding or relating to his line-item veto of a proposed legislative funding appropriation. The district court held that the appellant cannot bring his as-applied constitutional challenges through pretrial habeas corpus. Pretrial habeas typically cannot be used to test the sufficiency of a charging instrument or to determine the legal effect of particular facts under a criminal statute. If a constitutional challenge to a criminal statute does not assert that the statute is wholly void, it is to be classified as an as-applied challenge for which pretrail habeas is unavailable. As to his facial challenges, Texas Penal Code §36.03(a)(1), as it incorporates paragraph (F) of the Penal Code's "coercion" definition, is facially invalid under the First Amendment and is thus unenforceable. The district court’s judgment is affirmed in part, and reversed and remanded in part. Ex parte Perry, Austin Court of Appeals, No. 03-15-00063-CR, 7/24/15.

03-15-00063-CR
Bob Pemberton.

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

Charles G. Villarreal, Appellant v. The State of Texas, Appellee

The appellant contends, inter alia, that it was error to allow testimony regarding alleged sexual assaults other than the alleged assault at issue in this case because he did not receive sufficient notice under Texas Code of Criminal Procedure article 38.37. At trial the appellant did not argue that he lacked notice of an intent to use evidence regarding those acts, nor did he argue that he was unaware of the alleged acts at issue, but that the notice did not comply with the 30-day requirement from the recently amended article 38.37.The appellant had sufficient notice and was not surprised. The district court’s judgment is affirmed. Villarreal v. State, Austin Court of Appeals, No. 03-14-00095-CR, July 17, 2015.

03-14-00095-CR
David Puryear

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, TENTH DISTRICT, WACO

COLLEGE STATION MEDICAL CENTER, LLC D/B/A COLLEGE STATION MEDICAL CENTER, Appellants v. ELEANOR KILASPA AND WILLIAM KILASPA, Appellees

The trial court denied the defendant’s motion for summary judgment in this healthcare liability case. The appellant argues that limitations was not tolled because no defendant in this case received the statutorily required medical authorization. For the tolling provision of §74.051(c) to apply, a plaintiff need only give written notice, accompanied by the authorization form, in accordance with §74.051, i.e., by certified mail, return receipt requested. The trial court’s order is affirmed. COLLEGE STATION MEDICAL CENTER, LLC v. KILASPA, Waco Court of Appeals, No. 10-14-00374-CV, 7/23/15.

10-14-00374-CV
REX D. DAVIS

Practice Areas: Health Law

COURT OF APPEALS OF TEXAS, TENTH DISTRICT, WACO

ROBERT WILLIAMS, Appellant v. RUSSELL PARKER, INDIVIDUALLY AND HEIR OF LAWANNA KEETH, Appellee

The plaintiff sued the heir of a driver, both individually and as an heir, who allegedly caused an automobile accident that injured the plaintiff. The trial court erred in granting the defendant summary judgment on the ordinary negligence claim: if the person causing the accident lost consciousness and that loss of consciousness was unforeseeable, the defense of unforeseeable incapacity would apply. There is some evidence that the driver did not lose consciousness before the accident, and some evidence of foreseeability of loss of consciousness due to the driver’s diabetes. As to negligence per se, the plaintiff does not have the burden to prove the alleged statutory violation was unexcused. There is a fact question on the incompetency of the driver and whether the defendant should have known about that incompetency, therefore summary judgment was improper on the negligent entrustment cause of action. The trial court’s judgment is reversed and remanded. WILLIAMS v. PARKER, Waco Court of Appeals, No. 10-14-00349-CV, 7/23/15.

10-14-00349-CV
TOM GRAY

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, TWELFTH DISTRICT, TYLER

VERA LOUISE CLERKLEY, APPELLANT v. THE STATE OF TEXAS, APPELLEE

The trial court revoked the appellant’s community supervision. The appellant contends the trial court violated her right to due process by continuing the revocation hearing and then revoking without a finding of a new violation. After revoking the community supervision, the trial court continued the hearing to await a presentence investigation report. The appellant remained in jail and was not returned to community supervision. The trial court’s judgment is affirmed. CLERKLEY v. STATE, Tyler Court of Appeals, No. 12-14-00342-CR, 7/22/15.

12-14-00342-CR
BRIAN HOYLE

SUPREME COURT OF TEXAS

IN RE JARED WOODFILL ET AL., RELATORS

Residents of the City of Houston filed a referendum petition requesting the City Council to reconsider and repeal its equal rights ordinance and, if it did not repeal the ordinance, to put it to popular vote. The City Council refused, claiming the petition was invalid. The City Secretary certified their petition and thereby invoked the City Council's ministerial duty to reconsider and repeal the ordinance or submit it to popular vote. The City Charter gives the City Council no discretion to re-evaluate the petition. A writ of mandamus is conditionally granted. IN RE: WOODFILL, Texas Supreme Court, No. 14-0667, 7/24/15.

14-0667

SUPREME COURT OF TEXAS

KATY VENTURE, LTD. AND KATY MANAGEMENT, L.L.C., PETITIONERS, v. CREMONA BISTRO CORP., RESPONDENT

The petitioners in this equitable bill of review failed to update their registered address with the Secretary of State's office. They contend that the respondent failed to properly certify the petitioners' last known mailing address, because the respondent had actual notice of petitioners' current address but certified the old registered address as the last known mailing address. This is some evidence that the petitioner’s failure to receive notice of the default judgment was not a result of their fault or negligence. The court of appeals’ judgment is reversed and the case is remanded to the trial court. KATY VENTURE LTD. v. CREMONA BISTRO CORP., Texas Supreme Court, No. 4-0629, 7/24/15.

14-0629

SUPREME COURT OF TEXAS

CITY OF INGLESIDE, TEXAS, PETITIONER, v. CITY OF CORPUS CHRISTI, TEXAS, RESPONDENT

The city of Ingleside sued Corpus Christi seeking a declaration that structures, both natural and man-made, that are attached to and part of the fast land, and are functionally part of the land, are entirely within the jurisdiction of the land side of the shoreline. The court of appeals held that the trial court lacked jurisdiction to establish the boundary between the two cities because the selection of a political subdivision's boundary is a purely political question. Whether the "shoreline," an unfixed and inherently variable boundary, may be reshaped by protrusions of natural and artificial fixtures on the fast land does not constitute a political question beyond the court's competence or authority. The court of appeals’ judgment is reversed and remanded. CITY OF INGLESIDE v. CITY OF CORPUS CHRISTI, Texas Supreme Court, No. 4-0548, 7/24/15.

14-0548

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

TRYSHATEL MCCARDELL, also known as Trysha McCardell, Plaintiff Appellant, v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; JULIAN CASTRO, In His Official Capacity as Secretary of United States Department of Housing and Urban Development; THE GENERAL LAND OFFICE OF THE STATE OF TEXAS; GALVESTON HOUSING AUTHORITY; THE CITY OF GALVESTON; TEXAS DEPARTMENT OF HOUSING AND COMMUNITY AFFAIRS, Defendants Appellees

This is an appeal from the district court’s judgment against the plaintiffs in their challenge to the planned redevelopment of public housing sites destroyed in Hurricane Ike. The appellant sufficiently alleged that the challenged action in this case would deny her the benefits of an integrated community within her relatively compact neighborhood. The district court did not err in dismissing the state defendants as immune from suit under the Eleventh Amendment. In cases reviewing redevelopment of demolished sites, a reviewing court's inquiry is limited to considering whether HUD reviewed and approved a proposed site as meeting each standard. It does not require or permit a reviewing court to second-guess HUD's determinations. The district court’s judgment is affirmed. MCCARDELL v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, 5th U.S. Circuit Court of Appeals, No. 14-40955, 7/23/15.

14-40955
PATRICK E. HIGGINBOTHAM

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

JOSEPH R. WILCOX; LISA WILCOX, PlaintiffsAppellants v. WILD WELL CONTROL, INCORPORATED; SUPERIOR ENERGY SERVICES, INCORPORATED, DefendantsAppellees,

A welder was injured while working to decommission a well in the Gulf of Mexico. At the time of the occurence, the welder was working as a borrowed employee of Wild Well Control. He was assigned for one specific project that had a clear end date. Although crew would usually stay on a vessel for an entire job, they could request relief and leave the vessel before the job was complete. Focusing on the essence of what it means to be a seaman, the welder failed to demonstrate a genuine issue of material fact from which a reasonable jury could conclude that he qualifies for seaman status under the Jones Act. The district court’s judgment is affirmed. WILCOX v. WILD WELL CONTROL INC., 5th U.S. Circuit Court of Appeals, No. 13-31281, 7/24/15.

13-31281, Cons. with 14-30137
EDWARD C. PRADO

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee v. BENNIE D. EMEARY, JR., Defendant - Appellant

The appellant was sentenced to 15 years of incarceration because the district court erroneously classified his prior Texas Penal Code §30.02(a)(3) conviction as a "violent felony" conviction. Trial counsel should have pressed to avoid the plea agreement’s appeal waiver, but he failed to do so. The potential for avoiding the appeal waiver should have been addressed in the Anders brief, as well as the the characterization of the defendant as a career offender. The circuit court of appeals’ acceptance of the Anders brief was clear error. The court’s mandate is recalled, the appeal is reinstated and expedited, and the defendant is appointed counsel. UNITED STATES v. EMEARY, 5th U.S. Circuit Court of Appeals, No. 09-40529, 7/23/15.

09-40529 Conference Calendar
JAMES L. DENNIS

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

In re: RED BARN MOTORS, INCORPORATED; BARBARA A. RICHARDSON; DONALD B. RICHARDSON; LOUISIANA'S FIRST CHOICE AUTO AUCTION, L.L.C., Petitioners.

After transfer to an Indiana district court, and after proceedings began in the transferee court, the petitioners seek writs of mandamus vacating the transfer order. A transfer to another circuit removes the case from from the jurisdiction of the originator circuit, but the transferor district court may be directed to request that the transferee district court return the case. However, because the petitioners have not been diligent in seeking review of the transfer, the petitions for writs of mandamus are denied. In re: RED BARN MOTORS INC., 5th U.S. Circuit Court of Appeals, No. 15-30067, 7/20/15.

15-30067

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

GUSTAVO JULIAN GARCIA, Petitioner Appellant v. WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent Appellee

The petitioner in this request for a certificate of appealability argues, inter alia, that the merits of his Miranda claim are fairly debatable by reasonable jurists because the Court of Criminal Appeals initially overturned his conviction on grounds that one of the written confessions violated a Texas statute that operationalizes Miranda. The petitioner argues that this necessarily indicates that jurists have disagreed about the merits of his Miranda claim. Federal habeas corpus relief does not lie for errors of state law. Even assuming that the petitioner at the time of arrest was young, exhausted, and without his glasses, he cannot show that he failed to understand the warnings or that he attempted to invoke his rights in any way — he was given multiple correct warnings before his confession. The COA is denied. GARCIA v. STEPHENS, 5th U.S. Circuit Court of Appeals, No. 14-70035, 7/17/15.

14-70035
PATRICK E. HIGGINBOTHAM

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

MAURICE R. GOUDEAU, Plaintiff Appellant, v. NATIONAL OILWELL VARCO, L.P., Defendant Appellee.

The appellant challenges the district court's summary judgment dismissal of his age discrimination and retaliation claims. The evidence is sufficient to allow a jury to find age discrimination. The appellant argues that warnings were issued involving infractions related to tasks not within his job duties. Four warnings were issued on the day the appellant was fired, even though they related to different dates before that meeting. Ageist comments allegedly made by a supervisor easily meet the less stringent standard applicable in a circumstantial case. Regarding the retaliation claim, the appellant is unable to establish the causal link in light of the temporal gap of 8-10 months between the appellant’s complaint to HR and the adverse employment action. Also absent is evidence that the appellant’s supervisor knew of the complaint to HR about the ageist comment. The district court’s dismissal is affirmed in part, reversed in part and remanded. GOUDEAU v. NATIONAL OILWELL VARCO L.P., U.S. 5th Circuit Court of Appeals, No. 14-20241, 7/16/15.

14-20241
GREGG COSTA

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

LANDRY DIXON, Plaintiff - Appellant v. TOYOTA MOTOR CREDIT CORPORATION, Defendant - Appellee

The plaintiff-appellant filed suit against Toyota Motor Credit Corporation and a sales manager alleging that they led him to believe that a lease for an automobile would be tax exempt because the co-lessee was a non-profit organization for which the plaintiff is the registered agent and chief executive officer. Because this lease was made to an organization as well as to a natural person it cannot be a consumer lease under the Consumer Leasing Act. The district court’s judgment of dismissal is affirmed. DIXON v. TOYOTA MOTOR CREDIT CORP., 5th U.S. Circuit Court of Appeals, No. 14-30426, 7/23/15.

14-30426 Summary Calendar
STEPHEN A. HIGGINSON

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

IN RE: DEEPWATER HORIZON;

In this case involving the Deepwater Horizon settlement, the district court determined that a settlement provision governing access to information did not entitle the parties to claim-specific information until an initial decision about a claim's eligibility had been made by the settlement program. Jurisdiction exists under the collateral order doctrine when an order: 1. conclusively determined the disputed question; 2. resolved an important issue separate from the merits of the case; and 3. is effectively unreviewable on appeal from a final judgment. Even assuming that the challenged orders are injunctions, BP has not shown serious, possibly irreparable, consequences. Any harm here is adequately reparable through the multiple avenues BP has to pursue awards obtained fraudulently. The appeal is dismissed for want of jurisdiction. IN RE: DEEPWATER HORIZON, 5th U.S. Circuit Court of Appeals, No. 14-30823, 7/16/15.

14-30823
CARL E. STEWART

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

FANY JACKELINE RAMIREZ-MEJIA, also known as Fany Ramirez, also known as Fany Ramirez de Quinteros, Petitioner v. LORETTA LYNCH, U.S. ATTORNEY GENERAL, Respondent

The petitioner’s removal order was reinstated following her illegal reentry into the United States. The Board of Immigration Appeals ruled she may not apply for asylum and is ineligible for withholding of removal or protection under the Convention Against Torture. Aliens whose removal orders are reinstated may not apply for asylum. Nothing about the grant of temporary parole to pursue relief cancels the relevance of her earlier illegal reentry after having been removed. The petition for review is denied. RAMIREZ-MEJIA v. LYNCH, 5th U.S. Circuit Court of Appeals, No. 14-60546, 7/21/15.

14-60546
LESLIE H. SOUTHWICK

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

LESLIE SUN, Plaintiff - Appellant v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant - Appellee

The appellant filed claims for disability insurance benefits and supplemental security income benefits, alleging disability under the Social Security Act because of a fractured ankle. The Commissioner of Social Security denied benefits. In deciding whether to deny the claimant's request for review, the Appeals Council must consider and evaluate any "new and material evidence" that is submitted, if it relates to the period on or before the administrative law judge’s decision. If the AC finds that the ALJ's action, findings, or conclusion is contrary to the weight of the evidence currently of record, the AC will then review the case. Otherwise, it will deny the claimant's request for review. The regulations do not require the AC to provide a discussion of the newly submitted evidence or give reasons for denying review. It cannot be determined here whether the AC neglected to evaluate new evidence which the ALJ did not have. The district court’s judgment is reversed and remanded with instructions to reverse and remand the commissioner’s decision. SUN v. COLVIN, 5th U.S. Circuit Court of Appeals, No. 14-31058, 7/17/15.

14-31058
STEPHEN A. HIGGINSON

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

FRANCIS BRAUNER, Plaintiff - Appellee v. SHIRLEY COODY, Assistant Warden; KENNETH NORRIS, Assistant Warden; JONATHAN ROUNDTREE, Medical Doctor; JASON COLLINS, Medical Doctor; UNKNOWN MCMURDO, Doctor, Defendants - Appellants

The district court denied qualified immunity in this suit brought by a Louisiana inmate alleging deliberate indifference to his serious medical condition. Deliberate indifference is not established when medical records indicate that the plaintiff was afforded extensive medical care by prison officials. Even if subordinates were persistently delinquent in their duties, as the inmate alleges, this is not the same as showing either that the inmate’s rights were violated or that the doctors were deliberately indifferent as supervisors. The district court’s judgment is reversed and rendered for the defendants. BRAUNER v. COODY, 5th U.S. Circuit Court of Appeals, No. 14-30801, 7/17/15.

14-30801
EDITH H. JONES

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

CHARLES DON FLORES, Petitioner - Appellant v. WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee

The petitioner was convicted of capital murder and sentenced to death in Texas in 1999, based on his culpability for a shooting death while in the course of committing robbery and burglary. Reasonable jurists would not disagree with the denial of the petitioner’s request for leave to amend his federal habeas petition to pursue his ineffective assistance of trial counsel claims — including the alleged failure to secure a Batson ruling, the alleged failure to properly challenge hypnotically-enhanced testimony, and the alleged failure to investigate and present mitigating evidence. The district court denied leave to amend on the ground that amendment would be futile because all of the claims were time-barred and, furthermore, were not substantial within the meaning of Martinez and Trevino. The request for a certificate of appealability is denied. FLORES v. STEPHENS, 5th U.S. Circuit Court of Appeals, No. 14-70032, 7/21/15.

14-70032
E. GRADY JOLLY

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

GARY GONZALEZ, Appellant, v. IONE GRIMM, Appellee.

The plaintiff-appellant challenges a directed verdict in this case alleging malicious prosecution. The district attorney’s office was the initiator of the prosecution — not the complainant — and there was no evidence that the allegedly false information procured the prosecution. The trial court’s judgment is affirmed. GONZALEZ v. GRIMM, El Paso Court of Appeals, No. 08-13-00326-CV, 7/8/15.

08-13-00326-CV
ANN CRAWFORD McCLURE

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

CLAYTON WILLIAMS ENERGY, INC. and CHESAPEAKE EXPORATION, L.L.C., Appellants, v. BMT O & G TX, L.P., GOLIAD O & G TX, L.P., WD O & G TX, L.P., KEYSTONE O & G TX, L.P., and THRU LINE O & G TX, L.P., Appellees.

The plaintiffs brought various claims predicated on an oil and gas lease. The lessee, without notice, agreed to "farm out" part of the leasehold to a subcontractor in exchange for drilling services. The parties fundamentally agree that the assignment clause gives the lessee the right to assign, without notice, rights to the lessee’s area-of-mutual-interest partners. Nothing in the plain language of the assignment clause suggests a restriction to AMI entities in existence at the time of the contract. The operator clause imposed no substantive limitation on the lessee’s ability to assign operational rights, since that clause's purpose was only to allocate liability between the original parties and provide the lessors with a way to obtain recourse from the lessee — the "designated Operator" — in the event something went wrong. The judgment is vacated in part, and reversed and rendered. CLAYTON WILLIAMS ENERGY INC. v. BMT O & G TX L.P., El Paso Court of Appeals, No. 08-14-00133-CV, 7/8/15.

08-14-00133-CV
YVONNE T. RODRIGUEZ

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

IN THE INTEREST OF B.C.S., A MINOR CHILD.

A father challenges the sufficiency of the evidence to support the findings of a statutory predicate for termination and that termination is in the best interest of the child. The evidence was factually insufficient to support a finding of best interest. Multiple witnesses established that the child wanted to live with his father and wanted to continue a relationship with him. There was evidence of potential danger to the child, but the child's grandmother described the interaction between her son and grandson which demonstrates a loving relationship. Although at the time of trial, father was incarcerated, there was no evidence of what charges he was allegedly convicted nor the duration of his sentence. The trial court’s judgment is reversed and remanded. IN THE INTEREST OF B.C.S., El Paso Court of Appeals, No. 08-15-00084-CV, 7/8/15.

08-15-00084-CV
ANN CRAWFORD McCLURE

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

SHIRLEY LENOIR, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF SHANA LENOIR AND CHRISTOPHER MCKNIGHT, INDIVIDUALLY AND AS NEXT FRIEND OF NAYLA MCKNIGHT, Appellants v. LEAH ANNE GONSKI MARINO F/K/A LEAH ANNE GONSKI AND JAOU-CHEN HUANG, M.D., Appellees

A medical resident asserted in her plea to the jurisdiction that she is an employee of a governmental unit, which she identified as the UT System Medical Foundation. Without establishing that a governmental unit has the legal right to control her work, a movant cannot establish that she is the employee of that entity to obtain dismissal under the election-of-remedies provision. The foundation’s administrative role and its retention of the right to terminate residents does not establish a legal right to control the details of the resident’s work. The foundation’s bylaws and other documents do not demonstrate a right to control. That part of the judgment relating to the dismissal of the resident is reversed and remanded. LENOIR v. GONSKI, Houston’s 1st Court of Appeals, No. 01-13-01034-CV, 7/2/15.

01-13-01034-CV
Harvey Brown

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

HECTOR ESTRADA, ISELA ESTRADA, MARIA MARTINEZ, and JORGE GONZALES, Appellants v. DANER LEE CHESHIRE and LYNDON CHARLES CHESHIRE, Appellees

In this trespass to try title case, the appellants challenge the trial court's legal conclusion that they do not own the disputed property by adverse possession. The fact that some improvements may have been in the utility easement in front of the property is irrelevant to the determination of whether they were within the metes and bounds description of the property that the appellants claim to have adversely possessed; the test is the extent of the property over which dominion is openly and hostilely asserted, not the existence of an easement on that property. The appellants entered into an earnest money contract and sale contract for the land and then paid the applicable taxes on the land, including the disputed property. The appellants established adverse possession under the 10-year and 25-year statute. The trial court’s judgment is reversed and rendered. ESTRADA v. CHESHIRE, Houston’s 1st Court of Appeals, No. 01-14-00014-CV, 7/7/15.

01-14-00014-CV
Evelyn V. Keyes

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

JEREMY THOMAS, Appellant v. THE STATE OF TEXAS, Appellee

When reading back excerpts of a witness’ testimony, the trial court erred by not reading back the testimony — during questioning by the defense — that directly followed the excerpt. In light of the unobjected-to portion of the testimony that the court read back to the jury indicating that the witness saw appellant, who was wearing a black shirt, run past her, the trial court's omission from the reading of the testimony that a female and a man in a white shirt were also present at the complainant’s apartment did not affect appellant's substantial rights. The trial court’s judgment is affirmed. THOMAS v. STATE, Houston’s 1st Court of Appeals, No. 01-11-00258-CR, 7/7/15.

01-11-00258-CR
Evelyn V. Keyes

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

WEATHERFORD ARTIFICAL LIFT SYSTEMS, INC., Appellant v. A&E SYSTEMS SDN BHD, Appellee

The appellant challenges the grant of the special appearance of a A&E Malaysia, a Malaysian corporation. The trial court could have determined that all of the negotiations in furtherance of a failed joint venture, and contacts made during those negotiations, were attributable to A&E USA rather than A&E Malaysia. The trial court could have found that all the prior negotiations were between A&E USA and the appellant in seeking to establish a joint venture, and that when those efforts came to naught, A&E Malaysia stepped in to extricate its subsidiary by offering to directly repurchase the products A&E USA had sold to the appellant. A&E USA's negotiations cannot be "purposeful availment" by A&E Malaysia and those prior negotiations are not properly part of the jurisdictional analysis. The trial court’s order is affirmed. WEATHERFORD ARTIFICAL LIFT SYSTEMS INC. v. A&E SYSTEMS SDN BHD, Houston’s 1st Court of Appeals, No. 01-14-00863-CV, 7/14/15.

01-14-00863-CV
Sherry Radack

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

DEMARSENESE CAGE, Appellant v. THE METHODIST HOSPITAL, Appellee

The appellant sued a hospital for personal injuries sustained when she allegedly slipped on a wet floor in the hospital lobby. The appellant went to the hospital as a visitor, not a patient. The trial court granted the hospital’s motion to dismiss for failure to file an expert report. Because there is not a substantive nexus between the safety standards allegedly violated and the provision of health care, the appellant’s claim is not a health care liability claim requiring an expert report. The trial court’s judgment is reversed and remanded. CAGE v. THE METHODIST HOSPITAL, Houston’s 1st Court of Appeals, No. 01-14-00341-CV, 7/9/15.

01-14-00341-CV
Sherry Radack

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

KAMISHA DAVIS, Appellant v. TEXAS FARM BUREAU INSURANCE, Appellee

The plaintiff sued an insurance company, the insurer of a driver involved in a car accident with the plaintiff. By making a counteroffer in her Stowers demand, the plaintiff terminated her power of acceptance over an earlier settlement offer. A letter informing the plaintiff that the insurer believed her claim was worth $12,000 was not an actual promise sufficient to support a claim of promissory estoppel. The trial court’s judgment is affirmed. DAVIS v. TEXAS FARM BUREAU INSURANCE, Houston’s 1st Court of Appeals, No. 01-14-00686-CV, 7/2/15.

01-14-00686-CV
Laura Carter Higley

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

SOLUTIONS, LLC, Appellant v. EMMA DELGADO, Appellee

In this case alleging, inter alia, breach of a partnership agreement, the trial court granted the special appearance of a resident of Tennessee —one of the owners of a Tennessee corporation that entered into the partnership. There is no evidence that the partnership or the appellee have ever attempted to market themselves to Texas or serve the Texas market. The appellee had no self-initiated contacts with Texas. Her only contacts with Texas were due to a customer with ties to Texas contacting her Tennessee employer. The trial court’s order is affirmed. SOLUTIONS LLC v. DELGADO, Houston’s 1st Court of Appeals, No. 01-14-00800-CV, 7/14/15.

01-14-00800-CV
Evelyn V. Keyes

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

RSL-3B-IL, LTD., Appellant v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA AND PRUDENTIAL STRUCTURED SETTLEMENT COMPANY F/K/A PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY OF HOLMDEL, NEW JERSEY, Appellees

The appellee contended that two factoring orders created conflicting obligations and suspended payments. Appellant, as assignee, sued for breach of contract. Any contract right the appellant has against the appellee stemming from the appellant’s structured-settlement transfer agreement with assignor becomes enforceable only after it passes through a transfer order that meets the requirements of the Structured Settlement Protection Act — here, the second order contravened the first order. An applicant seeking judicial approval of the factoring agreement bears the burden to proffer evidence to support the findings necessary to approve the agreement and to obtain an order that comports with the statute. The trial court properly considered the appellee’s request for attorney's fees as part of its relief in interpleader. The trial court’s judgment is affirmed. RSL-3B-IL LTD. v. THE PRUDENTIAL INSURANCE CO. OF AMERICA, Houston’s 1st Court of Appeals, No. 01-14-00482-CV, 7/9/15.

01-14-00482-CV
Jane Bland

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

SHIRLEY LENOIR, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF SHANA LENOIR AND CHRISTOPHER MCKNIGHT, INDIVIDUALLY AND AS NEXT FRIEND OF NAYLA MCKNIGHT, Appellants v. U.T. PHYSICIANS, Appellee

The trial court granted the appellee’s plea to the jurisdiction. Only if the Legislature specifically addresses the existence and status of an entity will the requirements for classification as a governmental unit be met. The evidence establishes that the appellee’s status and authority are derived from actions by the UT System Board, not the Legislature. The appellee points to no statutory provision that discusses the status or authority of non-profit healthcare corporations like itself. The trial court’s order is reversed and the case is remanded. LENOIR v. U.T. PHYSICIANS, Houston’s 1st Court of Appeals, No. 01-14-00767-CV, 7/7/15.

01-14-00767-CV
Harvey Brown

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

HOWARD STERN AS EXECUTOR OF THE ESTATE OF VICKIE LYNN MARSHALL, Appellant [...] v. ELAINE MARSHALL AS INDEPENDENT EXECUTRIX OF THE ESTATE OF E. PIERCE MARSHALL, ROBERT MCINTYRE AS TEMPORARY ADMINISTRATOR OF THE ESTATE OF J. HOWARD MARSHALL, II, APPLICATION TO APPOINT ELAINE MARSHALL PENDING, IV ELAINE MARSHALL AS TRUSTEE OF THE MARSHALL GRANDCHILDREN'S TRUST FOR THE BENEFIT OF E. PIERCE MARSHALL, JR., ELAINE MARSHALL AS TRUSTEE OF THE MARSHALL GRANDCHILDREN'S TRUST FOR THE BENEFIT OF PRESTON MAR [...]

The appellant, during her lifetime, had tortious interference claims against an appellee pending in both probate court and in a California court. After the appellant won her case in California, she nonsuited all of her claims in the probate court. Rather than dismissing the appellant, the probate court allowed appellees to file new, post-nonsuit counterclaims seeking declaratory relief. At the time of the appellant’s nonsuit, appellees had tortious-interference claims pending that qualified as affirmative claims for relief under Texas Rule of Civil Procedure 162. To determine whether a justiciable controversy exists regarding the defendant’s request for declaratory relief, the matter must be analyzed as it relates to the matters pending in the probate court, and not to the non-suited claims. The judgment is reformed as modified to reverse an award of attorney’s fees. STERN v. MARSHALL, Houston’s 1st Court of Appeals, No. 01-02-00114-CV

01-02-00114-CV
Sherry Radack

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

HOUSTON METHODIST HOSPITAL F/K/A THE METHODIST HOSPITAL, Appellant v. KARA NGUYEN, Appellee

A hospital appeals the denial of its motion to dismiss this health care liability claim for alleged failure to serve it with an expert report. When a health care liability claim involves a vicarious liability theory, an expert report that adequately implicates the actions of that party's agents or employees is sufficient to implicate the party under the vicarious theory. Texas Civil Practice and Remedies Code §74.351(b) does not apply — the plaintiff’s expert reports are not the equivalent of the complete absence of an expert report because they implicate the hospital's conduct. The trial court’s denial is affirmed. HOUSTON METHODIST HOSPITAL v. NGUYEN, Houston’s 14th Court of Appeals, No. 14-14-01006-CV, 7/9/15.

14-14-01006-CV
Martha Hill Jamison

COURT OF APPEALS OF TEXAS, NINTH DISTRICT, BEAUMONT

CHRISTOPHER LEE SUTTON, Appellant v. THE STATE OF TEXAS, Appellee

An employee of a school district police department alllegedly had a sexual relationship with a student. The police department offices are not at the school where the student was enrolled. Texas Penal Code §21.12(a)(2) adds a class of employees who would be in violation of the statute regardless of whether they worked where the student was enrolled, but police officers are not included in this class. The trial court’s judgment is reversed and the a judgment of acquittal is rendered. SUTTON v. STATE, Beaumont Court of Appeals, No. 09-14-00414-CR, 7/15/15.

09-14-00414-CR, NO. 09-14-00415-CR, NO. 09-14-00416-CR, NO. 09-14-00417-CR, NO. 09-14-00418-CR
STEVE McKEITHEN

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Shamar Jerrell JOHNSON, Appellant v. The STATE of Texas, Appellee

The trial court denied the appellant’s motion to suppress evidence of alleged possession of a controlled substance. Being present in a dimly lit area, even one known for prostitution, at about 9:00 p.m. and walking without an apparent purpose does not support an officer having reasonable suspicion to suspect that person of engaging in prostitution. The appellant’s consent to search his person did not dissipate the taint of the officer's violation under the Fourth Amendment because his consent was not an independent act of his free will. The trial court’s order of deferred adjudication is reversed and remanded. JOHNSON v. STATE, San Antonio Court of Appeals, No. 04-14-00557-CR, 7/8/15.

04-14-00557-CR
Karen Angelini

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

HSIN-CHI-SU AKA NOBU SU, Appellant v. VANTAGE DRILLING COMPANY, Appellee

The trial court signed a temporary injunction precluding the appellant from disposing of, or otherwise encumbering, shares in the appellee company pending final judgment. Imposition of a constructive trust may be based on alleged fraud and does not require an alleged breach of fiduciary duty. Although alleged misrepresentations by the appellant would result in the appellant receiving benefits other than the shares governed by the temporary injunction, these actions support the appellee’s position that the appellant allegedly engaged in a pattern of taking actions detrimental to the appellee in order to extract more benefits. The temporary injunction is affirmed. SU v. VANTAGE DRILLING CO., Houston’s 14th Court of Appeals, No. 14-14-00461-CV, 7/14/15.

14-14-00461-CV
John Donovan

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

JOEL NAVARRO, Appellant v. THE STATE OF TEXAS, Appellee

A person's alcohol concentration level is not a basis for enhancement. It is instead an element of a separate offense because it represents a specific type of forbidden conduct-operating a motor vehicle while having an especially high concentration of alcohol in the body. “Blood,” as that term is used in Texas Penal Code §49.01, means whole blood. The trial court's charge error, when combined with the state's improper argument, allowed the jury to convict appellant solely on the basis that the BAC of his blood plasma exceeded the per se limit. The trial court’s judgment is reversed and remanded for a new trial. NAVARRO v. STATE, Houston’s 14th Court of Appeals, No. 14-13-00706-CR, 7/7/15.

14-13-00706-CR
Tracy Christopher

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

WOLF HOLLOW I, L.P., Appellant v. EL PASO MARKETING, L.P. AND ENTERPRISE TEXAS PIPELINE, LLC, Appellees

The appellant, a power generator, asserted claims against a natural gas provider. Replacement-power costs are recoverable only when the provider does not deliver gas having the scheduled amount of Btus or more specifically, a quantity of gas in an amount equal to the scheduled delivery quantity. The appellant never pleaded that its gas-quality claim was in fact a gas-quantity issue. Alleged delivery of gas with excessive heat content is not equivalent to failing to deliver the scheduled quantity of gas. As modified, the trial court’ judgment is affirmed. WOLF HOLLOW I L.P. v. EL PASO MARKETING L.P., Houston’s 14th Court of Appeals, No. 14-09-00118-CV, 7/2/15.

14-09-00118-CV
Tracy Christopher

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

MICHAEL SHAWN RYALS, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges his conviction for the felony offense of fraudulent use of identifying information. Forty-eight days elapsed betweent the initial contact with the informant and the date the affidavit was presented to the magistrate. When the affidavit recites facts indicating activity of a protracted and continuous nature, the passage of time becomes less significant. The affidavit was sufficient to establish probable cause based on information provided by an undercover officer, regardless of any information obtained from the informant. The trial court’s judgment is affirmed. RYALS v. STATE, Houston’s 14th Court of Appeals, 7/14/15.

14-14-00435-CR
Martha Hill Jamison

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

THOMAS LESTER HARPER, APPELLANT, v. THE STATE OF TEXAS, STATE

The appellant argues that the trial court erred by denying jury instructions on necessity and sudden passion, contending that these instructions were required based on his testimony that he shot a victim but believed the shooting was necessary to protect his children. The appellant’s belief that it was necessary to shoot and kill a person helping his children escape from a mangled, smoking vehicle was unreasonable as a matter of law. The evidence doesn’t show that the appellant experienced sudden passion. The prosecution’s use of the word “execute” to describe the shooting does not require reversal. The trial court’s judgment is affirmed. HARPER v. STATE, Fort Worth Court of Appeals, No. 02-14-00189-CR, 7/2/15.

02-14-00189-CR
BONNIE SUDDERTH

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

ASHTON HARRY MATTHEWS, APPELLANT v. THE STATE OF TEXAS, STATE

The appellant challenges his conviction of alleged assault of a public servant . The appellant objected to a partial Geesa instruction. Instructing the jury what the term "reasonable doubt" does not mean is not providing a definition of what the term does mean. The trial court’s judgment is affirmed. MATTHEWS v. STATE, Fort Worth Court of Appeals, No. 02-14-00428-CR, 7/2/15.

02-14-00428-CR
LEE ANN DAUPHINOT

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

MICHAEL AMOS, APPELLANT v. THE STATE OF TEXAS, STATE

The appellant challenges his conviction of the alleged offense of cruelty to a nonlivestock animal. The appellant contends six venire members said they would find someone guilty if the person killed an animal even if the state did not prove that the killing was in a cruel manner. After the six venire members said they would not follow the law, they did not speak up when asked if they would require the State to prove every element. The venire members effectively gave contradictory answers. The trial court did not abuse its discretion by denying the challenges for cause. The trial court’s judgment is affirmed. AMOS v. STATE, Fort Worth Court of Appeals, No. 02-13-00244-CR, 7/2/15.

02-13-00244-CR
ANNE GARDNER

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

AERO AT SP. Z.O.O., APPELLANT v. DENNIS GARTMAN AND JERRY K. BAKER, APPELLEES

The appellant, a company located in Poland, filed a special appearance within 30 days after the trial court signed a default judgment against it. The appellant's special appearance is, literally, a postjudgment motion in that it was filed after the default judgment. The appellant's special appearance asserts that the trial court lacks personal jurisdiction over the appellant and requests the trial court to enter an order dismissing the appellees' suit and awarding costs to the appellant. Thus, the appellant's special appearance implicitly requests that the trial court vacate the default judgment. The special appearance constituted a postjudgment motion that extended the appellate timetable. The appeal is dismissed for lack of jurisdiction. AERO AT SP. Z.O.O. v. GARTMAN, Fort Worth Court of Appeals, No. 02-14-00330-CV, 7/9/15.

02-14-00330-CV
SUE WALKER