Recent Decisions

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

JAIME SOTO, Appellant, v. GENERAL FOAM & PLASTICS CORPORATION, Appellee.

The appellant argues that his motion for new trial is governed by the equitable standard established in Craddock. The Carpenter good cause standard which governs the withdrawal of admissions applies to a motion for new trial filed after summary judgment is granted on a motion to which the non-movant failed to timely respond when the respondent had notice of the hearing and an opportunity to seek a continuance or file a motion for leave to file a late response as permitted by Texas Rule of Civil Procedure 166a(c). The admissions here were deemed admitted as discovery sanctions. The appellant offered no explanation for his failure to respond to the discovery requests, including the request for admissions, which caused his attorney to withdraw and the trial court to enter the sanctions order. The appellant's motion for new trial did not present a question of fact on the critical issue of whether good cause existed to permit him to withdraw the deemed admissions. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-12-00194-CV, 10-10-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

MARIA G. THOMPSON/LUIS MARIONI, D.C., Appellant, v. JAIME STOLAR, M.D., ALIVIO MEDICAL CENTER, ALIVIO TREATMENT CENTERS, P.A. AND LUIS MARIONI, D.C./MARIA G. THOMPSON, Appellees.

This is a multi-party appeal from a judgment in a medical and chiropractic malpractice case. The patient alleges that her chiropractor negligently referred her to a physician for injections to her knee, and alleges that the injections were negligently administered. Expert testimony that the allegedly resulting injury would have been less likely if the patient had been seen immediately by an orthopedic surgeon, without testimony of the normal progression of that type of infection or how it would have been treated had it been caught earlier, does not support a finding of reasonable medical probability. The trial court's judgment as to the chiropractor is reversed and a take nothing judgment rendered. The remainder of the judgment is affirmed. El Paso Court of Appeals, No. 08-11-00264-CV, 10-08-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

ROBERT H. HOLMES, Appellant, v. GMAC, INC., Appellee.

A finance company sued the appellant for breach of contract for the balance due on a car. The trial judge denied the appellant's third motion for a continuance. After the appellee presented its case in chief, the trial court required the appellant to notify the court if he wished to present additional testimony or evidence. After the appellant failed to do so, the trial court entered judgment. Given the appellant's failure to show when he would be available to attend trial or testify, the trial court did not abuse its discretion by denying the motion for continuance. A class action counteclaim filed after the deadline set by the scheduling order was properly struck. An award of $18,000 as attorney's fees was not an abuse of discretion. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-12-00209-CV, 10-15-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

RSS RAIL SIGNAL SYSTEMS CORPORATION AND JOHN CUMMINGS, Appellants, v. CARTER STAFFORD ARNETT HAMADA & MOCKLER, PLLC, Appellee.

The appellants appeal from an order of the trial court approving settlement and disbursement of settlement proceeds. A claim for attorney's fees made by an attorney who represented a party to the suit are not court costs for purposes of Texas Civil Practice and Remedies Code §64.051(a)(1). The trial court's judgment is reversed in part and rendered. El Paso Court of Appeals, No. 08-12-00333-CV, 10-10-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

B.C., Appellant, v. TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee.

The appellant challenges the termination of his parental rights with regard to his two children. The appellant's guilty plea to a charge of child abandonment is sufficient to support the trial court's finding that the appellant knowingly placed or allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being under Texas Family Code §161.001(1)(D). The appellant asserts that trial counsel was incompetent and that prejudice need not be shown when it is established that counsel was not merely incompetent but inert -- the record shows that counsel was well-engaged during the proceedings. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-14-00150-CV, 10-08-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

THE CITY OF EL PASO, Appellant, v. JOHN FOX, Appellee.

A city appeals the denial of its plea to the jurisdiction in the appellee's suit alleging that the city de facto condemned property by removing electric meters. The appellant is not attempting to circumvent sovereign immunity by disguising a claim for money damages as a declaratory judgment claim. The appellant's original petition in intervention included a claim for money damages but his first amended petition is restricted to requesting only declaratory and injunctive relief related to his assertion that the city violated his right to due process. Although the appellant seeks the type of review contemplated by Texas Local Government Code §214.0012, he did not timely file a verified petition for writ of certiorari. Consequently, he did not invoke the trial court's jurisdiction to review the condemnation order. The trial court's order is reversed and a dismissal is rendered. El Paso Court of Appeals, No. 08-12-00264-CV, 10-08-2014

Practice Areas: Residential and Commercial Real Estate

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

IN RE ALLSTATE COUNTY MUTUAL INSURANCE COMPANY, Relator

The relator, an insurance company, seeks a writ of mandamus ordering the trial court to sever and abate extra-contractual and bad faith claims until the breach of contract claim brought by the real parties in interest is resolved. The claim alleging that the insurer failed to make a good faith settlement offer must be severed, as it would be negated by a determination in the breach of contract claim that the insurer is not liable. Severance of the alleged misrepresentation claims is not mandatory -- these claims allege that the the real parties are entitled to damages even if they are not covered by the insurance contract. The writ is conditionally granted in part and denied in part. Houston's 1st Court of Appeals, No. 01-14-00068-CV, 10-16-2014

Practice Areas: Insurance Law

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

IN THE INTEREST OF D.W., J.L., V.T., R.W., KE.W., KA.W., B.W., AND A.W., MINOR CHILDREN

The appellant appeals the termination of her parental rights to eight children. The record establishes that the appellant has continued to make choices that do not put her children's safety and welfare first. The evidence in favor of termination includes: leaving the children in a van in a hospital parking lot for over an hour, exposing the children to domestic violence that allegedly occurred in her marriage, failing to attend counseling, and failing to attend scheduled visits regularly due to her incarceration and terms of probation. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-14-00871-CV, 10-10-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

ROBERT H. HOLMES, SR., Appellant v. GRAHAM MORTGAGE CORPORATION, Appellee

The appellee sued the appellant as guarantor on a note, alleging a deficiency owed under the note in the amount of $912,077, with interest continuing to accrue. The guaranty waives "any defense to liability" and specifically includes a waiver of statutory defenses. The appellant waived his offset defense under Texas Property Code §51.003. The appellant argues that the parties made a mutual mistake as to the availability of the offset defense. This mistake involved a state of the law and does not support recission. The trial court's order is affirmed. Dallas Court of Appeals, No. 05-13-01047-CV, 10-21-2014

Practice Areas: Contracts

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

JERRY KILLINGSWORTH, Appellant v. THE HOUSING AUTHORITY OF THE CITY OF DALLAS, Appellee

The appellant appeals the summary judgment on his claims alleging breach of an employment contract and alleging violations of his civil rights. The appellant argues that the terms of a letter agreement with the Dallas Housing Authority were approved by the board of commissioners before the agreement was signed and presented to the appellant. The last sentence of the agreement states that its terms are nonbinding unless it is signed by the DHA board chairman and approved by the DHA board -- this sentence would be rendered meaningless by the appellant's interpretation. Because he cannot show that he had a property interest in employment with the DHA, his 42 USC §1983 claims also fail as a matter of law. The appellant's subjective belief of discrimination, no matter how genuine, is not enough to controvert the DHA's evidence of a nondiscriminatory reason or raise a fact issue on the DHA's discriminatory motive. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-12-00524-CV, 10-14-2014

Practice Areas: Labor and Employment

COURT OF APPEALS OF TEXAS, ELEVENTH DISTRICT, EASTLAND

MICHAEL L. WILLIAMS, COMMISSIONER OF EDUCATION, Appellant v. STERLING CITY INDEPENDENT SCHOOL DISTRICT ET AL., Appellees

The trial court held that the Commissioner of Education committed an ultra vires act when he allegedly failed to limit his calculations of excess revenue to the three factors specified in Texas Education Code §42.2516(h). Section 42.2516(h) limited clawback of a district's excess revenue to only that revenue attributable to the funding elements listed in the statute. Section 42.2516(l)'s ban on appeals from the Commissioner's determination under §42.2516 does not apply here because the Commissioner's determination constituted an ultra vires act -- an act outside the mandate of §42.2516. The credits that the trial court ordered the Commissioner to issue constituted permissible prospective relief. The trial court's judgment is affirmed. Eastland Court of Appeals, No. 11-12-00035-CV, 10-16-2014

Practice Areas: Education Law

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

ALEJANDRO HERNANDEZ AND EDITH ROMAN, Appellants, v. ENRIQUE GALLARDO, Appellee.

Tenants appeal summary judgment against them on their claims relating to their eviction. One of the tenants included a promissory estoppel claim based on the landlord's alleged promise to sell her the home. The tenant did not present any summary judgment evidence that she would not have rented the home if the landlord had not made the promise to sell it back to her at an unspecified date in the future. Consequently, the tenant failed to present more than a scintilla of evidence that she materially changed her position in reliance on the alleged promise to sell the home back to her or give her first option to buy. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-12-00178-CV, 10-15-2014

Practice Areas: Residential and Commercial Real Estate

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

ONCOR ELECTRIC DELIVERY COMPANY, LLC, Appellant v. MARCO MURILLO, Appellee

A jury found liability against the appellant, an electricity provider, and three others, in this suit that arose after an electrical contact workplace accident. An existing energized transformer within an electrical easement is a condition of the premises, and not a contemporaneous negligent activity. The jury's findings in general negligence, rather than premises liability, do not support a judgment against the appellant. The trial court's judgment is reversed and a take-nothing judgment is rendered as to the appellant. Houston's 1st Court of Appeals, No. 01-10-01123-CV, 10-16-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

EBER MARTINEZ, Appellant v. THE STATE OF TEXAS, Appellee

In challenging his conviction, the appellant contends that he unknowingly relinquished his right to have a jury recommend community supervision for the alleged aggravated sexual assault, an option not open to the trial court in a bench trial. The trial court discussed the jury-trial waiver on the record with both appellant and defense counsel. Appellant presented no evidence, other than his argument in his appellate brief, demonstrating that no one informed him that the trial court could not impose community supervision as a punishment for aggravated sexual assault in a bench trial. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-13-00698-CR, 10-07-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

CHENIERE ENERGY, INC., CHARIF SOUKI, INDIVIDUALLY, AND GREG RAYFORD, INDIVIDUALLY, Appellants v. AZIN LOTFI, Appellee

The appellants challenge the trial court's denial of their the Texas Citizens' Participation Act motion to dismiss the claims against them. In her verified petition the plaintiff alleged that the appellants "made the decision" to terminate her and, in doing so, "exacted revenge" on her. That decision may be the result of 1. a communication 2. between individuals who join together 3. for the purpose of expressing, promoting, pursuing, or defending their common interests -- but the record supports alternate conclusions as well. The bare assertion of counsel involvement cannot meet the evidentiary burden to establish that a communication occurred. The trial court's denial is affirmed. Houston's 1st Court of Appeals, No. 01-13-00515-CV, 10-07-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

JAE KIM, FANNIN FOOD MART, INC., AND THE REAL PROPERTY KNOWN AS 2111 FANNIN STREET, Appellants v. THE STATE OF TEXAS, Appellee

The state brought an action against the appellants asserting a common nuisance claim. The state obtained a permanent injunction against the appellants aimed at reducing crime occurring on and around the property. A party maintains a common nuisance only if it fails to make reasonable attempts to abate the activity. The plain language of the statute places the focus of the inquiry on what efforts the defending parties took, as opposed to the ultimate success or failure of those attempts. The trial court's judgment is reversed and a take-nothing judgment is rendered. Houston's 1st Court of Appeals, No. 01-13-01083-CV, 10-09-2014

Practice Areas: Residential and Commercial Real Estate

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

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

The appellant contends that she did not consent to the waiver of privilege in connection with her trial counsel's cross-examination of her former lawyer The trial judge expressly found that such a waiver in fact had occurred. Without the benefit of an evidentiary hearing on the allegations, the record is not sufficiently developed to support a conclusion that the trial judge's determination was in error. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-12-00200-CR, 10-07-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

IN RE NOBLE DRILLING (JIM THOMPSON), LLC, Relator

The trial court imposed sanctions following the relator's 15-month delay producing photographs of an accident scene taken the day the plaintiff was injured on a drilling rig. The relator argues that the trial court abused its discretion in striking two affirmative defenses and awarding over $50,000 in additional monetary sanctions. The trial court's sanction order was improper. Because the sanctions foreclose the relator's affirmative defenses, thus preventing the relator from presenting relevant evidence in support of corresponding jury questions, the sanctions function as death penalty sanctions. Death penalty sanctions are no longer warranted, given that the time-of-incident photos have been produced. The death penalty sanction here was unnecessary, because the order contains a lesser sanction that would promote compliance with discovery: the exclusion of exemplar photographs reconstructing the incident scene. Monetary sanctions are generally not subject to mandamus because they can be properly reviewed on appeal. The trial court is directed to vacate the order striking the defenses. The remainder of the mandamus petition is denied. Houston's 1st Court of Appeals, No. 01-14-00256-CV, 10-16-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

KATY INTERNATIONAL, INC. F/KA/ EMER INTERNATIONAL, INC., MENGGHUI ZHANG AND BINGHUA JIANG, Appellants v. JINCHUN JIANG, Appellee

The appellee, a former shareholder in a Texas corporation, filed suit against the appellants, also shareholders, and the corporation. This dispute centers around agreements made when the appellee decided to leave the company. A shareholder may expressly agree to be personally liable for corporate obligations. Because there is no evidence the appellants agreed to be personally liable with regard to a debt, the evidence is legally insufficient to support the finding of liability. The trial court's error, if any, in admitting a Yahoo Finance document was harmless because unobjected-to evidence of the value of the stock was otherwise introduced at trial and the exhibit reflected accurate, publicly available information regarding the market value of the stock during the relevant timeframe. The trial courts judgment is reversed and rendered in part, and affirmed in part. Houston's 14th Court of Appeals, No. 14-13-00615-CV, 10-21-2014

Practice Areas: Contracts

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

PINNACLE PREMIER PROPERTIES, INC. AND PINNACLE REALTY ADVISORS, INC., Appellants v. GHISLAIN BRETON, CATHERINE DENICOURT AND DAVID ANDREIS, Appellees

The appellants complain that the district court lacked jurisdiction to enjoin them from pursuing two eviction proceedings that were pending in justice court. The appellees purchased the properties subject to a deed of trust that contained a tenant-at-sufferance clause. Accordingly, the questions of possession and title are not intertwined, and the justice court had exclusive jurisdiction over the issue of possession. The trial court erred in granting a temporary injunction, because appellees have an adequate remedy at law through their wrongful foreclosure claim. The trial court's order is reversed and rendered. Houston's 14th Court of Appeals, No. 14-14-00194-CV, 10-09-2014

Practice Areas: Residential and Commercial Real Estate

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

LINDA HERNANDEZ, JOSE HERNANDEZ, JAVIER VASQUEZ, CLAUDIA GIL, RAUL VASQUEZ AND VIRGINIA VASQUEZ, Appellants v. ABRAHAM, WATKINS, NICHOLS, SORRELS & FRIEND, A TEXAS GENERAL PARTNERSHIP, RANDALL SORRELS, AND BERNARDINO AGOSTO, JR., Appellees

The appellants alleged that a firm committed malpractice and breached fiduciary duties when it settled appellants' claims arising out of the 2005 BP plant explosion for allegedly insufficient amounts of money. After the case was consolidated with the firm's declaratory action against the appellants, the trial court granted nine separate motions for partial summary judgment filed by the firm, denied the appellants' motion for partial summary judgment, and then signed a final take-nothing judgment. Inter alia, the appellanta allege that the firm breached fee agreements by deducting common expenses where the clients were not similarly situated to other clients. The agreements refer to "cases similarly situated," not to similarly situated clients. Because the fee agreements authorized the firm to deduct a portion of its common expenses from each appellant's recovery under these circumstances, the firm did not breach the fee agreements when it did so. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00567-CV, 10-21-2014

Practice Areas: Legal Profession

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

FEDERAL HOME LOAN MORTGAGE CORPORATION, Appellant v. TRINH PHAM, KATHERINE CRAWFORD & GARY BLOCK, Appellees

A mortgagor appeals the trial court's summary judgment granted in favor of occupants of residential property on the ground that the mortgagor's claims were barred by res judicata based on prior judgments for forcible detainer between the parties. Considering the limited nature of a forcible detainer action and the statutory language of the Property Code, a new and independent cause of action for forcible detainer arises each time a person refuses to surrender possession of real property after a person entitled to possession of the property delivers a proper written notice to vacate. The mortgagor presented no evidence that it gave proper notice to vacate. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00109-CV, 10-09-2014

Practice Areas: Residential and Commercial Real Estate

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

MISSION PETROLEUM CARRIERS, INC., Appellant v. DAVID KELLEY, Appellee

The appellant challenges the trial court's denial of its motion to compel arbitration. The appellee received benefits under the appellant's health and safety plan containing the arbitration agreement after he retained an attorney and filed suit; by accepting benefits under the plan, the appellee ratified the agreement, rendering any procedural unconscionability in the formation of the agreement moot. The trial court's denial is reversed and remanded. Houston's 14th Court of Appeals, No. 14-14-00072-CV, 10-09-2014

Practice Areas: Alternative Dispute Resolution , Arbitration (ADR)

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

INTERNACIONAL REALTY, INC., Appellant v. 2005 RP WEST, LTD., Appellee

The trial court rendered judgment on a jury verdict, awarding the buyer $4 million in damages plus interest and fees in this suit alleging breach of a real-estate agreement. The parties dispute the meaning of a remedy provision in the agreement that the seller may "put the Property to Purchaser and sue Purchaser for the Purchase Price." The appellant argues that for the appellee to exercise the "put" remedy, the property had to be actually transferred to the appellant, and not to any third-party. The appellee contends that the contract unambiguously authorized it to "put" the property to the appellant by the act of suing it to recover the contractual purchase price. With two reasonable interpretations, the correct understanding of the "put" remedy would have been a question of fact for the jury, which was resolved in the appellee's favor when the jury determined that it exercised the contractual "put" remedy. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-12-00258-CV, 10-07-2014

Practice Areas: Contracts

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

IN THE MATTER OF J.D.C.

The appellant challenges the trial court's order modifying a juvenile's disposition by committing him to the Texas Juvenile Justice Department. The trial court did not abuse its discretion. Although the evidence supports the possibility that the juvenile could continue to improve, the other evidence shows a history of assaultive behavior and inability to follow the rules at even the most intensive psychiatric facility that could be offered to the juvenile as an alternative to TJJD. San Antonio Court of Appeals, No. 04-14-00187-CV, 10-08-2014

Practice Areas: Family Law , Juvenile Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

PETER SMITH, Appellant v. KENDA CAPITAL, LLC, Appellee

The trial court dismissed the appellant's suit against the appellee, a subsidiary, pursuant to a forum selection clause contained in the contract between the appellee and its parent corporation. The appellant signed an employment agreement with the appellee, and in conjunction with his employment, signed an agreement with the parent corporation. A non-signatory may invoke the direct benefits estoppel exception to enforce a clause contained in a contract that contains other terms on which the signatory plaintiff must rely to prosecute its claims. The trial court's order is affirmed. Houston's 14th Court of Appeals, No. 14-13-00977-CV, 10-21-2014

Practice Areas: Contracts

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

THE CITY OF SUGAR LAND, Appellant v. LEON KAPLAN, Appellee

The trial court denied a city's plea to the jurisdiction on the appellee's disability discrimination claim. The appellant did not timely assert his disability claim, and because this claim cannot relate back to the appellant's timely filed charge of age discrimination, the trial court lacked jurisdiction. A suit under the Texas Commission on Human Rights Act will be limited in scope to only those claims that were included in a timely administrative charge and to factually related claims that could reasonably be expected to grow out of the agency's investigation of the claims stated in the charge. The trial court's denial is reversed and judgment is rendered dismissing the disability claim with prejudice. Houston's 14th Court of Appeals, No. 14-14-00292-CV, 10-16-2014

Practice Areas: Labor and Employment

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

JEFF OLLEY, Appellant v. HVM, L.L.C., IN ITS CAPACITY AS MANAGER OF THE HOTEL COMMONLY KNOWN AS THE EXTENDED STAY AMERICA - HOUSTON - KATY FREEWAY/ENERGY CORRIDOR, Appellee

The appellant complains of his eviction from a room in an extended stay hotel. Texas Tax Code section 156.101 applies to an occupancy tax, and is not relevant to the right to use or possess the hotel room nor the relationship between the occupant and the hotel. A registration card does not establish that the appellant has a potentially meritorious claim of right to possession of the property. The appeal is dismissed as moot. Houston's 14th Court of Appeals, No. 14-13-00779-CV, 10-14-2014

Practice Areas: Residential and Commercial Real Estate

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

JOHNNY COLLUMS AND TINA COLLUMS, Appellants v. FORD MOTOR COMPANY, Appellee

The appellants appeal the trial court's granting of summary judgment in favor of the appellee, a car manufacturer, on the appellants' Deceptive Trade Practices Act claims. Appellants did not have to establish their Texas residency in order to establish their status as DTPA consumers. The trial court's summary judgment is reversed and remanded. Houston's 14th Court of Appeals, No. 14-13-01132-CV, 10-07-2014

Practice Areas: Consumer Protection

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

REGINALD RAY WASHINGTON, JR., Appellant v. THE STATE OF TEXAS, Appellee

The state alleged that the appellant aided another man who opened fire on a crowd of people at a night-time social gathering; nearby, a child who was outside was struck by a bullet. The trial court did not err by including "aided" in the jury charge, but the court erred by including "directed" and "encouraged." A jury note strongly suggests the jury was not misled by the inclusion of "directed" or "encouraged" in the application paragraphs. Therefore, there was no actual harm. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00453-CR, 10-14-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, NINTH DISTRICT, BEAUMONT

ROBERT WILLIAM CORNWELL, Appellant v. THE STATE OF TEXAS, Appellee

The appellant appeals his conviction for allegedly impersonating a public servant. The evidence supports the conclusion that the appellant committed an official act. The jury could reasonably conclude that the appellant made statements about being an assistant district attorney to obtain the cooperation of the Montgomery County assistant district attorney in resolving the criminal case of his friend, a case over which the appellant thought the assistant district attorney had influence. The trial court's judgment is affirmed. Beaumont Court of Appeals, No. 09-13-00203-CR, 10-08-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, NINTH DISTRICT, BEAUMONT

THE STATE OF TEXAS, Appellant v. ESTER ABOYTES ANDERSON, Appellee

The state appeals the trial court's grant of motion to suppress evidence from a warrantless non-consensual blood draw. Texas Transportation Code §724.012(b) does not constitute an exception to the Fourth Amendment's warrant requirement. Nothing in the plain wording of the statute indicates that the Texas Legislature considered or intended the factual circumstances contained in §724.012(b) to create exigent circumstances. Because there was no warrant issued in this case, the statutory exception to the exclusionary rule in Texas Code of Criminal Procedure article 38.23(b) does not apply. The trial court's judgment is affirmed. Beaumont Court of Appeals, No. 09-13-00400-CR, 10-08-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

IN THE INTEREST OF S.M.E.

The appellant challenges the trial court's order terminating her parental rights to her daughter. While it may be true that the record is devoid of evidence on certain Holley factors, the list of factors relating to the best interest of a child is not exhaustive, and evidence is not required on all of the factors to support a finding terminating a parent's rights. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-14-00325-CV, 10-08-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Michael Jason TUCKER, Appellant v. The STATE of Texas, Appellee

The trial court failed to instruct the jury in its punishment charge to not consider extraneous evidence unless it was proven beyond a reasonable doubt. When a defendant does not object to the charge error, his convictions are subject to reversal on appeal only if he has suffered egregious harm. The jury assessed punishment on the two most serious counts-aggravated sexual assault-at less than the maximum, and did not assess fines on any of the four counts. Had the proper instruction been included, the state's case would not have been any less persuasive. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-12-00602-CR, 10-08-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Israel ZAPATA, Appellant v. The STATE of Texas, Appellee

The appellant was charged with aggravated robbery, both as the primary actor and as a party in a case involving multiple actors. Generally, a police policy of destroying COBAN recordings after one year does not violate due process. The judgment is affirmed as modified to delete the assessment of attorney's fees. San Antonio Court of Appeals, No. 04-13-00780-CR, 10-08-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

In re Dennis J. MARTINEZ

The petitioner in this child support dispute challenges the trial court's assumption of subject matter and personal jurisdiction. Once a trial court with jurisdiction renders a support decree -- here, a New York court -- that trial court is the only court authorized to modify the support decree as long as it retains jurisdiction. The law of the state that issued the original order governs the duration of the support obligation. The obligor's fulfillment of the duty of support established under the original order precludes the imposition of a further obligation of support by a Texas court. The claim that this action was an original suit as opposed to a modification is without merit. The writ of mandamus is conditionally granted. San Antonio Court of Appeals, No. 04-14-00536-CV, 10-15-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

MICHAEL QUINN SULLIVAN, APPELLANT v. SALEM ABRAHAM, APPELLEE

The appellant questions the amount of attorney's fees and expenses awarded him by the trial court and the failure to assess sanctions against the plaintiff in this alleged defamation suit. In situations where the statute specifies that a fee must be both reasonable and just/equitable, a litigant wanting more must show that the award was unreasonable and that considerations of equity and justice did not warrant the reduction. Although the quantum or extent of the sanction is regulated by what the trial court determines sufficient, a sanction is mandatory under Texas Civil Practice and Remedies Code §27.009(a)(2). The trial court's order of dismissal is affirmed in part, and reversed and remanded in part. Amarillo Court of Appeals, No. 07-13-00296-CV, 10-13-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

JOE DALE JOHNSON, APPELLANT v. THE STATE OF TEXAS, STATE

The appellant challenges his convictions for two counts of aggravated sexual assault of a child and one count of indecency with a child. Although the constitutional right of confrontation includes the right of cross-examination to show bias or fabrication, the trial court retains wide latitude to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant. The trial court did not abuse its discretion by excluding evidence of the complainant's alleged past sexual behavior and subsequent juvenile adjudication. Because the crime of indecency with a child by contact was subsumed into the crime of aggravated sexual assault of a child, convictions of both offenses violate double-jeopardy protections. The convictions for counts one and two are affirmed, and a judgment of acquittal is rendered on the count three. Fort Worth Court of Appeals, No. 02-11-00253-CR, 10-09-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

King Street Patriots, Catherine Engelbrecht, Bryan Engelbrecht and Diane Josephs, Appellants v. Texas Democratic Party; Gilberto Hinojosa, Successor to Boyd Richie, in His Capacity as Chairman of the Texas Democratic Party; John Warren, in His Capacity as Democratic Nominee for Dallas County Clerk; and Ann Bennett, in her Capacity as the Democratic Nominee for Harris County Clerk, 55th Judicial District, Appellees 20:NO. 03-12-00255-CV

The trial court concluded that it did not have jurisdiction to consider some of appellants' constitutional challenges to provisions of the Election Code and, as to the remaining challenges, the trial court upheld the constitutionality of the provisions at issue. Sections 253.131 and 253.132 are not facially unconstitutional. Section 273.081 is not facially unconstitutional or a prior restraint on speech. Section 253.094 is not facially unconstitutional. The definitions of contribution, campaign contribution, officeholder contribution, political contribution, expenditure, campaign expenditure, direct campaign expenditure, officeholder expenditure and political expenditure are not unconstitutionally vague. The definitions of political committee, specific-purpose committee, general-purpose committee, and the now-repealed direct-expenditure sections are not facially unconstitutional as violations of the First Amendment and are not unconstitutionally vague. The trial court's summary judgment is affirmed. Austin Court of Appeals, No. 03-12-00255-CV, 10-08-2014

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

George Thurman Lauret, Appellant v. Meritage Homes of Texas, LLC d/b/a Monterey Homes, Appellee

The trial court entered a take-nothing judgment in favor of the defendant, a home builder, concluding that the plaintiff, a home owner, was not entitled to restoration under the Texas Deceptive Trade Practices Act because he failed to establish that he had no adequate remedy at law. A consumer seeking restoration under the DTPA is not required to prove that he lacks an adequate remedy at law. The trial court's judgment is reversed and remanded. Austin Court of Appeals, No. 03-13-00082-CV, 10-10-2014

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

APM ENTERPRISES, LLC, AND AVTAR GREWAL, Appellant v. NATIONAL LOAN ACQUISITIONS COMPANY, Appellee

To recover pastdue, accelerated sums under a promissory note, the appellee sued the appellants. The appellant's challenge the admission into evidence of a business-records affidavit and the documents attached to that affidavit. The evidence was properly admitted under a local standing order and Texas Rule of Evidence 902(10). The suggestion that the trial court took judicial notice of the existence of the affidavit and attached records is meritless; the trial court never stated that it took judicial notice of the affidavit and its attached documentation, it merely overruled the appellant's authentication objection and admitted the documents into evidence. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-14-00027-CV, 10-17-2014

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

TAMMY CROCKER, Appellant v. THOMAS BABCOCK, IV, M.D., LONGVIEW EMERGENCY MEDICINE ASSOCIATES, INC., AND GOOD SHEPHERD MEDICAL CENTER, Appellees

In this health-care liability suit, the trial court found that the appellees were entitled to the benefit of the heightened standard of proof in cases involving emergency medical care as set forth in Texas Civil Practice and Remedies Code §74.153. In determining whether emergency services were provided, context is analyzed; the Turner analysis is not followed; the definition of "emergency services" in Texas Health and Safety Code §311.021 also is not applied. The patient in this case presented the medical staff with an emergency condition -- a stroke -- and she was provided emergency services. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00134-CV, 10-21-2014

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

IN THE INTEREST OF A.L. AND D.L., CHILDREN

The appellant challenges the termination of her parental rights to two children. The appellant argues that there is no evidence that the appellant abused drugs in a manner that endangered the children. The specific danger to the child's well-being need not be established as an independent proposition, but may be inferred from parental misconduct. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-14-00050-CV, 10-08-2014

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

RICHARD LEE RABB, APPELLANT v. THE STATE OF TEXAS, APPELLEE

The Court of Criminal Appeals remanded this case for a determination of reformation under the Thornton standard. This case is within the example mentioned in footnote 59 in Thornton, one in which the actor could have been convicted of tampering with evidence on the basis of a finding he harbored a culpable mental state less than intent with respect to the conduct element, with the result that a reviewing court is unable to determine that the factfinder necessarily found the actor harbored a specific intent to destroy the evidence. Because the judgment may not be reformed, the previous judgment of acquittal is undisturbed. Amarillo Court of Appeals, No. 07-11-00078-CR, 10-08-2014

COURT OF CRIMINAL APPEALS OF TEXAS

VANESSA CAMERON, Appellant v. THE STATE OF TEXAS

The court of appeals reversed the appellant's conviction. The appellant contends that her constitutional right to a public trial was violated when the trial court excluded the public from the voir dire at the beginning of her trial. The trial judge's findings cited several interests to justify the exclusion of the public: the size and configuration of the courtroom and the fact that every chair was used for the venire panel; general concerns about safety; and the expectation that the trial would be emotionally charged. At no point did the trial court make case-specific findings about a security interest that was likely to be prejudiced. The court of appeals' judgment is affirmed. Court of Criminal Appeals, No. PD-1427-13, 10-08-2014

Practice Areas: Appellate Law - Criminal

COURT OF CRIMINAL APPEALS OF TEXAS

EX PARTE ALBERTO GIRON PEREZ

In his post-conviction application for a writ of habeas corpus the applicant raises claims of ineffective assistance of appellate counsel and seeks permission to file an out-of-time petition for discretionary review for the purpose of appealing his 1991 murder conviction. The record reflects that applicant understood that he could seek further review of his conviction as early as 1993, but waited until 2011 to file the present application for post-conviction relief. The application is barred by the equitable doctrine of laches, therefore, relief is denied. Court of Criminal Appeals, No. AP-76,800, 10-08-2014

Practice Areas: Appellate Law - Criminal

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

MARIA ALMAGUER, Appellant, v. THE STATE OF TEXAS, Appellee.

For the same alleged act, the appellant was convicted of 1. one count of manslaughter, a lesser-included offense to capital murder and a second-degree felony enhanced to a first-degree felony based upon a finding of "true" that the appellant had been once before convicted of a felony offense; 2. one count of felony murder, a first-degree felony regardless of enhancements; 3. intentionally or knowingly causing serious bodily injury to a child by act, a first-degree felony regardless of enhancements; and 4. intentionally or knowingly causing serious bodily injury to a child by omission, a first-degree felony regardless of enhancements. The manslaughter conviction, as a second-degree felony before enhancements, is set aside. Accepting the state's election that the most serious conviction is for murder, the convictions for intentionally or knowingly causing serious bodily injury to a child by act (count three); and intentionally or knowingly causing serious bodily injury to a child by omission (count four) are vacated and set aside, because to retain them would violate the protection against double jeopardy. Corpus Christi Court of Appeals, No. 13-12-00605-CR, 10-09-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

In re Christopher L. Graham

The appellant filed a motion challenging the trial court's orders sustaining contests to his affidavit of indigency. The appellant equivocated when asked specific questions about his income from court appointments in various cities and counties, stating that he did not know what the exact numbers were. Given the appellant's lack of knowledge about his income, and that there is evidence that he was employed, the appellant did not establish that he is unable to pay the costs for the reporter's record and the clerk's record. The appellant's motion is denied. Austin Court of Appeals, No. 03-14-00270-CV, No. 03-14-00271-CV, 10-09-2014

Practice Areas: Appellate Law - Civil

COURT OF CRIMINAL APPEALS OF TEXAS

FARRAIN JOSEPH COMEAUX, Appellant v. THE STATE OF TEXAS

The court of appeals affirmed the appellant's conviction, finding that the appellant failed to preserve error on his challenge for cause. A defendant who chooses to employ peremptory strikes outside of the strike zone may not then complain about harm concerning a juror within the strike zone who could have been removed instead. The court of appeals' judgment is affirmed. Court of Criminal Appeals, No. PD-1440-13, 10-15-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

DAVID SAMARIPAS, JR., Appellant v. THE STATE OF TEXAS

The court of appeals rejected the appellant's assertion of error, that the trial court improperly sustained the state's objection to appellant's questions during voir dire. If a party asks a proper question of the venire, the other party objects, and the court sustains the objection, then error is preserved. Engaging in further questioning or development does not forfeit the claim of error. The court of appeals' judgment is affirmed in part, and reversed and remanded in part. Court of Criminal Appeals, No. PD-135-13, 10-15-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

THE STATE OF TEXAS v. KIMBERLY CRYSTAL STORY, Appellee

The court of appeals found no abuse of discretion in the court's conclusion that appellee's arrest was unlawful and the evidence inadmissible. While the state's "open field" theory might be valid to justify the search, the state failed to raise the argument at trial. An anonymous call, standing alone, cannot serve to supply probable cause for a warrantless search or arrest. The court of appeals' judgment was affirmed. Court of Criminal Appeals, No. PD-0590-13, 10-15-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

JERRY DON WHATLEY, Appellant v. THE STATE OF TEXAS

The court of appeals acquitted the appellant because the state did not offer evidence disputing his claim that he was asleep at the time of the alleged offense and that his actions were therefore involuntary. Although each inference alone may not have been enough to find appellant guilty beyond a reasonable doubt, in the aggregate a jury could have reasonably inferred that appellant was awake, but feigning sleep, when he allegedly inappropriately touched the complainant and that his alleged actions were therefore voluntary under Texas Penal Code §6.01(a). Court of Criminal Appeals, No. PD-1627-13, 10-08-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

THE STATE OF TEXAS v. DAVID COLT REDUS, Appellee and THE STATE OF TEXAS v. JOSE GUADALUPE ZERMENO, Appellee

The court of appeals dismissed the state's appeal, concluding that it did not have jurisdiction because the elected district attorney failed to timely file the statutorily required certification that the appeal was not taken for delay and that the evidence suppressed was of substantial importance to the case. The notice of appeal quotes the pertinent statutory provision and contains the district attorney's signature at the bottom. The state's certification of a pretrial suppression motion is not a technicality. Quoting the statute does not satisfy the certification requirement. The court of appeals' dismissal is affirmed. Court of Criminal Appeals, No. PD-0067-14, PD-0069-14, 10-8-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

LEMUEL CARL BURT v. THE STATE OF TEXAS

The day after the trial court formally pronounced sentence, the trial judge entered a restitution order in the absence of the parties, without a hearing, and without any agreement by the parties. The court of appeals vacated the trial court's restitution order and remanded. If there is a lack of a sufficient factual basis for a restitution order, appellate courts should vacate and remand the case for a restitution hearing because the trial judge is authorized to assess restitution, but the amount of restitution is not yet supported by the record. The court of appeals' judgment is affirmed. Court of Criminal Appeals, No. PD-1563-13, 10-15-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

EVARISTO GONZALEZ GONZALEZ, Petitioner, v. ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Respondent.

The petitioner contends that his removal is improper because he derived citizenship from his father pursuant to former 8 U.S.C. §1432(a)(5) of the Immigration and Nationality Act. The petitioner did not reside permanently in the country as contemplated by §1432 because of his unlawful entry and status until the age of 23. The fact that he has lived in the country since his entry at age seven does not remedy his unlawful entry. The petitioner does not qualify for derivative citizenship. The petition for review is denied. 5th U.S. Circuit Court of Appeals, No. 14-60378, 10-21-2014

Practice Areas: Immigration Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

In the Matter of: STANLEY THAW, Debtor;

A non-debtor spouse claims a homestead exemption in property held jointly with her husband that is subject to a forced sale in the husband's bankruptcy proceedings. A right of sale under federal law may be enforced as against a non-debtor spouse, in spite of the non-debtor spouse's homestead rights. Any potential property interest was acquired after the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, and any takings clause objection may not be invoked on behalf of property interests that came into being after enactment of the provision. The decisions of the bankruptcy court and district court are affirmed. 5th U.S. Circuit Court of Appeals, No. 14-40108, 10-09-2014

Practice Areas: Bankruptcy

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

PLANNED PARENTHOOD OF GREATER TEXAS SURGICAL HEALTH SERVICES; PLANNED PARENTHOOD CENTER FOR CHOICE; PLANNED PARENTHOOD SEXUAL HEALTHCARE SERVICES; WHOLE WOMAN'S HEALTH; AUSTIN WOMEN'S HEALTH CENTER; KILLEEN WOMEN'S HEALTH CENTER; SOUTHWESTERN WOMEN'S SURGERY CENTER; WEST SIDE CLINIC, INCORPORATED; ROUTH STREET WOMEN'S CLINIC; HOUSTON WOMEN'S CLINIC, each on beh [...] v. ATTORNEY GENERAL GREGORY ABBOTT; DAVID LAKEY, M.D.; MARI ROBINSON, Executive Director of the Texas Medical Board, Defendants - Appellants

A petition for rehearing en banc is denied. Judge Edith Jones dissents: "Upon weighing the heavy burden imposed on a large fraction of women affected by the admitting-privileges provision against the State's weak justifications that are unsupported by reliable evidence, it becomes clear that this court should reconsider this case en banc and affirm the district court's conclusion that H.B. 2's admitting-privileges provision imposes an undue burden upon a woman seeking to obtain a previability abortion and thus is unconstitutional." 5th U.S. Circuit Court of Appeals, No. 13-51008, 10-09-2014

Practice Areas: Constitutional Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

In the Matter of: POSITIVE HEALTH MANAGEMENT, Debtor;

A bankruptcy trustee brought an adversary proceeding to recover payments made to a bank as allegedly fraudulent transfers under 11 U.S.C. §548. The bankruptcy court found that the bank could establish the affirmative defense that it took payments from the debtor in good faith and gave value in return. The district court adopted the bankruptcy court's recommendation. A good faith transferee is entitled to the protections of §548(c) when it gives any value in return, but only to the extent of that value. When a transferee receives a fraudulent transfer the value of which exceeds the consideration it gave up in return, §548(c) requires netting. The district court's judgment is affirmed in part, reversed in part, and rendered in favor of the trustee. 5th U.S. Circuit Court of Appeals, No. 12-20687, 10-16-2014

Practice Areas: Bankruptcy

COURT OF CRIMINAL APPEALS OF TEXAS

MICHAEL ANTHONY GRADO, Appellant v. THE STATE OF TEXAS

The appellant's community supervision was revoked, and the judge sentenced him to 10 years' confinement, believing that it was the statutory minimum for the appellant's offense when in fact it was five. The appellant did not object. The court of appeals found there was no procedural default and reformed the judgment. In the absence of a defendant's effective waiver, a judge has an independent duty both to identify the correct statute under which a defendant is to be sentenced and the range of punishment it carries and to consider the entire range of punishment in sentencing a defendant irrespective of a defendant's request that he do so. The court of appeals' judgment is affirmed. Court of Criminal Appeals, No. PD-1057-13, 10-15-2014

Practice Areas: Appellate Law - Criminal

COURT OF CRIMINAL APPEALS OF TEXAS

EX PARTE ELMER HOWARD WHISENANT, JR., Applicant

The habeas applicant filed a motion with the Court of Criminal Appeals asking that the habeas application be remanded to the convicting court for additional fact development by way of an evidentiary hearing. The applicant included sworn declarations and affidavits with his motion that were not filed with his application the county of conviction. Even if an application has already been transferred to the Court of Criminal Appeals, an applicant who wishes the convicting court and the Court of Criminal Appeals to consider supplemental evidence should file these materials in the convicting court in the county of conviction. Absent compelling and extraordinary circumstances, material filed only with the Court of Criminal Appeals will not be considered. The motion to remand is denied. Court of Criminal Appeals, No. WR-82,063-01, 10-15-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

SONIA HERRERA MARQUEZ, CLAUDIA GARCIA, AND ALICIA GOMEZ, FOR AND ON BEHALF OF THEIR MINOR CHILDREN, Appellants, v. CLINT INDEPENDENT SCHOOL DISTRICT, Appellee.

Parents appeal from the trial court's order granting the school district's motion to dismiss and plea to the jurisdiction in this suit against a school district. The exhaustion-of-administrative-remedies requirement does not apply here; the parent's action complains solely of violations of their children's state constitutional rights, and Texas Family Code §7.057(a)(1) does not provide the Commissioner of Education jurisdiction over the claims. The trial court's judgment is reversed and remanded. El Paso Court of Appeals, No. 08-13-00092-CV, 09-24-2014

Practice Areas: Education Law

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-CRUMLEY; DALLAS COUNTY, TEXAS, Plaintiffs - Appellees, TEXAS AS [...] v. RICK PERRY, in his Official Capacity as Governor of Texas; NANDITA BERRY, in her Official Capacity as Texas Secretary of State; STATE OF TEXAS; STEVE MCGRAW, in his Official Capacity as Director of the Texas Department of Public Safety, Def [...]

The district court issued final judgment on October 11 holding that SB 14 is unconstitutional and violates the Voting Rights Act. In light of the importance of maintaining the status quo on a date near the election, the traditional factors weigh in favor of granting a stay: given the special importance of preserving orderly elections, the state has made a strong showing that it is likely to succeed on the merits; the state will be irreparably harmed if the stay is not issued; although the individual voter plaintiffs may be harmed by the stay, the first two factors are the most critical. The state's emergency motion for stay pending appeal is granted. 5th U.S. Circuit Court of Appeals, No. 14-41127, 10-14-2014

Practice Areas: Election and Political Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

VICENTE MARTINEZ-MARTINEZ, also known as Vincente Martinez, also known as Francisco Javier Garcia, Petitioner v. ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Respondent

The Board of Immigration Appeals dismissed the petitioner's appeal on the grounds that he had knowingly and intelligently waived his appellate rights before the immigration judge at his initial hearing. The record amply supports the finding that the petitioner knowingly and intelligently waived his appellate rights: the IJ provided a verbal and written explanation of respondents' appellate rights; the petitioner denied to the IJ that he wanted to apply for relief; the IJ provided explanatory responses to the petitioner's questions; the petitioner verbally accepted the IJ's decision as final. The petition for review is denied. 5th U.S. Circuit Court of Appeals, No. 13-60425, 10-15-2014

Practice Areas: Immigration Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee v. JULIO CESAR FERNANDEZ, Defendant - Appellant

The appellant argues the district court erred both by applying a six-level enhancement for allegedly making a ransom demand and by declining to apply a reduction for the appellant's alleged role in the offense. The ransom enhancement applies anytime a defendant demands money from a third party for a release of a victim, regardless of whether that money is already owed to the defendant. The ransom enhancement was appropriately applied given that the appellant knew payment demands would be made, even if he did not know that the demands would involve someone other than the intended target. The trial court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-41033, 10-20-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

ROBERT JOHN SHARPE; CINDY GUARISCO; WILLIAM CHASE MOEN; GARY DOWNARD; for themselves as individuals and on behalf of themselves and for all others similarly situated, Plaintiffs - Appellants v. AMERIPLAN CORPORATION, a Texas Corporation; DENNIS BLOOM, an individual; DANIEL BLOOM, an individual; DOES, 1-100 Inclusive; Defendants - Appellees

Independent business owners in the appellee's network earned income by selling health plans and recruiting additional IBOs. The plaintiffs sued following their termination, alleging that a promise of lifetime-vested-residual income was a misrepresentation and that the appellee breached their contracts by ceasing the payments. The plaintiffs contest both the validity and scope of an arbitration provision added to the policy manual. As to three of the plaintiffs, expansive dispute resolution provisions in their sales director agreements cannot be harmonized with the similarly expansive arbitration provision without rendering the dispute resolution provisions meaningless. The district court's order is reversed and remanded in part and affirmed in part. 5th U.S. Circuit Court of Appeals, No. 13-10922, 10-16-2014

Practice Areas: Alternative Dispute Resolution , Arbitration (ADR)

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

SCOTT E. CASEY, Individually, as Administrator of the Estate of Dawna Marie Casey, Deceased and as Next of Friend of R.W.C. and A.L.C., his minor children; ROBERT JAMES GILLIS, Plaintiffs - Appellants v. TOYOTA MOTOR ENGINEERING & MANUFACTURING NORTH AMERICA, INCORPORATED; TOYOTA MOTOR MANUFACTURING, INDIANA, INCORPORATED; TOYOTA MOTOR CORPORATION; CTS CORPORATION; TOYOTETSU AMERICA, INCORPORATED, Defendants - Appellees

The district court granted judgment as a matter of law in favor of a car manufacturer in this suit stemming from a fatality suffered in a single-car automobile accident. The mere fact that the side air bag failed to remain inflated for six seconds is insufficient evidence of a manufacturing defect. The plaintiff presented no evidence as to the reason why the air bag did not remain inflated and it is not appropriate for the jury to speculate as to the cause. Texas does not permit proof of a manufacturing defect by showing a deviation from performance standards alone. The plaintiff failed to show that the allegedly defective product differed from other products in the same product line. The design defect claim fails because the plaintiff failed to present evidence from which a jury could find that a safer alternative design existed. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-11119, 10-20-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

JONATHAN LEVINE AND SAMANTHA LEVINE, Appellants v. STEVE SCHARN CUSTOM HOMES, INC., STEVE SCHARN, AND NEWFIRST NATIONAL BANK, Appellees

Homeowners appeal the trial court's grant of summary judgment on counterclaims against them. In response to a fellow subdivision homeowner, one of the appellants made an allegedly defamatory statement about the builders and invited the fellow homeowner to look up the suits the appellants filed. The appellants failed to establish that the statements were substantially true. Failure to include an instruction that general damages can be presumed does not convert the question into defamation per quod when only general damages are sought in the damage question. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-12-00229-CV, 10-02-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

DONALD E. SPENCER, Appellant v. JOE PAGLIARULO AND CC MEDIA HOLDINGS, INC., Appellees

The pro se appellant challenges the trial court's order granting the motion to dismiss filed by appellees pursuant to Texas Civil Practice and Remedies Code §27.003. The appellant contended that he had 60 days to appeal the trial court's ruling under §27.008. This argument appears to rely on former §27.008(c), which was repealed effective June 14, 2013, and is inapplicable to this case. The appeal is dismissed for want of jurisdiction. Houston's 1st Court of Appeals, No. 01-14-00376-CV, 09-30-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

IN RE CITY OF DALLAS, Relator

A city petitions for writ of mandamus requesting that the court order the trial court to vacate its order denying the city leave to file its fourth amended answer and counterclaim. A party is not entitled to mandamus relief upon a simple showing that it will be subject to delay, inconvenience or expense if it is required to await correction of the trial court's error on appeal. Where discovery is complete, the trial court has conducted a significant portion of the trial, disposing of a substantial portion of case as a result, and only few substantive issues remain pending, mandamus review of interlocutory trial court rulings may actually defeat the goal of judicial economy and efficient resolution of disputes. The petition is denied. Dallas Court of Appeals, No. 05-14-00922-CV, 10-01-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

TIC N. CENTRAL DALLAS 3, L.L.C., ET AL., Appellants/Cross-Appellees v. ENVIROBUSINESS, INC. D/B/A EBI CONSULTING, ET AL., Appellees v. PERKINS & WILL, INC., ET AL, Appellants/Cross-Appellees

The appellant did not file certificates of merit with its original petition. Because Texas Civil Practice and Remedies Code §150.002(e) states the dismissal "may" be with prejudice, it expressly does not require a dismissal with prejudice. The trial court has discretion to determine whether a dismissal should be with or without prejudice. When a plaintiff files a new action and includes a certificate of merit with the first-filed petition in that action, the plaintiff has complied with the plain language of the statute. The trial court's judgment is reversed in part, affirmed in part, and remanded. Dallas Court of Appeals, No. 05-13-01021-CV, 09-24-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

CHESAPEAKE EXPLORATION, L.L.C., CHESAPEAKE OPERATING, INC., ANADARKO PETROLEUM CORPORATION, and SWEPI, L.P., Appellants, v. ENERGEN RESOURCES CORPORATION, KAISER FRANCIS OIL COMPANY, PRIDE ENERGY COMPANY, CROWN OIL PARTNERS, IV, L.P., CRUMP ENERGY PARTNERS, L.L.C., DALTON H. COBB, JR., MICHAEL B. COBB, BILL HIGHTTOWER, and HIGHTOWER EXPLORATION, L.L.C., Appellees.

This case involves the construction of two oil and gas leases executed in 1976 and their effect on a 640-acre section of land covered by the leases. The leases provide that when continuous development ends, the lease terminates as to all acreage except for each proration unit established under the rules and regulations of the RRC upon which there exists (either on the described land or on lands pooled or unitized therewith) a well capable of producing oil and/or gas in commercial quantities. The trial court did not err in concluding that the 1976 leases failed to provide for rolling termination of non-producing proration units. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-13-00266-CV, 10-01-2014

Practice Areas: Energy and Natural Resources

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

J.D.S., Appellant, v. TEXAS DEPARTMENT OF FAMILY PROTECTIVE SERVICES, Appellee.

The appellant challenges the legal and factual sufficiency of the evidence to support termination of the parent child relationship. The evidence is legally and factually sufficient to support termination under Texas Family Code §161.001 (D) and (E): the home was allegedly infested with roaches and mice; poison for the mice was allegedly throughout the home; the refrigerator was broken; allegedly there was no hot water; the child's teeth allegedly presented a serious health issue. A reasonable fact finder could have reasonably formed a firm belief or conviction that termination was in the best interest of the child. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-14-00191-CV, 09-24-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

ETC MARKETING, LTD., Appellant v. HARRIS COUNTY APPRAISAL DISTRICT, Appellee

The trial court granted summary judgment to an appraisal district, rejecting the appellant's argument that its stored natural gas was exempt from ad valorem taxes. Under the Complete Auto standard, a state tax on interstate commerce ordinarily will not survive Commerce Clause scrutiny if the taxpayer demonstrates that the tax 1. applies to an activity lacking a substantial nexus to the taxing state; 2. is not fairly apportioned; 3. discriminates against interstate commerce; or 4. is not fairly related to the services provided by the state. Even assuming that the gas is in interstate commerce, it was nevertheless appropriate for an ad valorem tax to be imposed when the owner stored the gas in Texas for the business purpose of selling the gas at a higher price at a later time of the owner's choosing. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-12-00264-CV, 10-02-2014

Practice Areas: Taxation

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

LETOSHA GALE, M.D. AND ZOE LIFE WELLNESS CENTER, P.A., Appellants v. HECTOR LUCIO, Appellee

This permissive appeal concerns the appellee's attempt to invoke the open courts provision of the Texas Constitution to toll the statute of limitations in a wrongful death and survival claim that the appellee's wife originally brought as a negligence claim before her death. The alleged harm here -- a failure to report test results -- does not constitute an injury that is inherently difficult to discover. The two-year statute of limitations provided a reasonable time to discover the alleged failure to report, and, thus, the open courts doctrine does not apply to this suit. The trial court's order allowing the suit to continue is reversed and rendered that the appellee take nothing. Houston's 1st Court of Appeals, No. 01-13-00543-CV, 09-25-2014

Practice Areas: Health Law

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

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

The appellees sued the appellant, the independent administrator and heir of an estate, seeking to recover attorney's fees and costs incurred in defending an adverse claim to title on real property sold to the appellees by the decedent. a A seller is not liable under a general warranty deed for attorney's fees or other expenses of successfully defending a title to real property. The trial court's judgment is reversed and remanded. Houston's 1st Court of Appeals, No. 01-12-00953-CV, 09-25-2014

Practice Areas: Trusts and Estates

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

UNION PACIFIC RAILROAD COMPANY, Appellant v. AMERITON PROPERTIES INCORPORATED, Appellee

A railroad appeals the trial court's judgment holding that it abandoned its right of way in the appellee's property and awarding the appellee attorney's fees. The 1879 deed conveys the same land that was at issue in a condemnation proceeding. The deed contains no indication that the interest conveyed was limited to the interest that the railroad could have obtained through the condemnation proceeding. The deed unambiguously conveyed an undivided, fee simple interest in the property to the appellant's predecessor in title. The trial court's judgment is reversed and remanded. Houston's 1st Court of Appeals, No. 01-13-00811-CV, 10-02-2014

Practice Areas: Residential and Commercial Real Estate

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

CAMERON INTERNATIONAL CORPORATION, Appellant v. JEREMY GUILLORY, Appellee

This is an interlocutory appeal from the trial court's temporary injunction order, entered in an employment suit involving a covenant not to compete. The trial court properly considered the choice-of-law issue at the temporary injunction stage. Texas has no overriding interest in protecting an employment relationship between a multinational corporation and a resident of another state; the trial court was required to apply Delaware law as specified in the parties' agreement in determining whether the appellant demonstrated a probable right to relief. The trial court's order is reversed in part, and remanded. Houston's 1st Court of Appeals, No. 01-14-00452-CV, 09-25-2014

Practice Areas: Labor and Employment

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

ROY DALE GLOVER, Appellant v. THE STATE OF TEXAS, Appellee

The trial court found no reasonable probability that the appellant would not have been convicted had DNA results been available at trial. The appellant was excluded as the contributor to blood on a towel found in the victim's car. Even if the contributor the DNA were known, this would not create any inference that the appellant was not guilty of the crime. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-13-00564-CR, 09-25-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

ODELL BURGESS, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges his conviction for evading arrest with a motor vehicle. An erroneous charge incorrectly suggesting that the appellant had testified, and incorrectly stating that evidence of a previous conviction had been admitted, does not require reversal because the jury is presumed to have followed the trial court's other instructions. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00219-CR, 09-30-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

GLOBAL PARAGON DALLAS, LLC AND ILAN ZELNIK, Appellants v. SBM REALTY, LLC, Appellee

The appellants challenge the trial court's grant of a special appearance. The appellee violated Texas Rule of Civil Procedure 120a's due-order-of-hearing requirement and entered a general appearance because it obtained a ruling on its motion for new trial before obtaining a ruling on its special appearance. A motion for new trial is an acknowledgment of the court's jurisdiction and a request to invoke the court's authority. The trial court's order is reversed and remanded. Houston's 14th Court of Appeals, No. 14-13-00974-CV, 09-30-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

PAUL STEVEN JACOBS, Appellant v. MELISSA ELLEN FIELDS JACOBS, Appellee

The appellant challenges the trial court's actions regarding garnishment of nonexempt funds and assets. That the appellee continues to seek enforcement and collect on the final breach of contract judgment through the underlying garnishment proceedings does not affect the trial court's jurisdiction. Where the record supports that the garnishor attempted service of the garnishment proceedings as properly authorized by Texas Rule of Civil Procedure 21a, yet the debtor avoided and refused service, the garnishor has strictly complied with Rule 663a. The trial court's judgments are affirmed. Houston's 14th Court of Appeals, No. 14-13-00442-CV, No. 14-13-00462-CV, 10-02-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

EX PARTE STANLEY ANOZIE OBI

The appellant contends that the habeas court erred in denying him relief because trial counsel failed to admonish him that his deportation was a virtual certainty or presumptively mandatory. The trial court reasonably could have rejected the appellant's self-serving claim that he would have insisted on going to trial had he known that a plea would result in mandatory deportation and concluded that it would not have been rational for the appellant to reject a plea deal under the circumstances. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-12-01003-CR, 09-25-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

SAN ANTONIO WATER SYSTEM, Appellant v. Beatriz SMITH, Appellee

The San Antonio Water System appeals the denial of its plea to the jurisdiction. The status and authority of SAWS and its board derives exclusively from the city ordinance and the encumbrance documents. SAWS is not a "governmental unit" within the meaning of Texas Tort Claims Act §101.001(3). There is at least an issue of actual notice raised by the plaintiff's sending timely notice to CPS Energy, part of the city of San Antonio. The denial of the plea to the jurisdiction is affirmed. San Antonio Court of Appeals, No. 04-13-00898-CV, 09-24-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

LIBERTY MUTUAL FIRE INSURANCE COMPANY, Appellant v. LEXINGTON INSURANCE COMPANY as Subrogee of DCT Rittiman, LLC, Appellee

Appellant Liberty Mutual Fire Insurance Co.'s policy holder damaged a building insured by the appellee, Lexington Insurance Co. Lexington covered the loss. As subrogee, Lexington sued Liberty Mutual. Liberty Mutual asserted its insured occupied the premises and an exclusion applied. The trial court granted Lexington's summary judgment motion. Under Kelley-Coppedge, the term "occupy"-in an "own, rent, or occupy" exclusion in a commercial general liability policy that does not otherwise define occupy-means "to hold or keep for use." The term "occupy" comprises a continued physical presence and control of the premises for the insured's own benefit. The trial court's order is reversed and rendered that Lexington take nothing on its subrogation claim. San Antonio Court of Appeals, No. 04-13-00586-CV, 09-30-2014

Practice Areas: Insurance Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

DRESSER-RAND GROUP, INC. AND DRESSER-RAND HOLDINGS SPAIN, S.L.U., Appellants v. CENTAURO CAPITAL, S.L.U. AND JOSEBA GRAJALES, Appellees

The appellant challenges the grant of the appellees' special appearances. The appellees are non-residents. The operative facts of this litigation concern the steps allegedly taken by the appellees in the past to begin to "dissipate" all of the stock the appellees received as part of the closing consideration under an agreement with appellants, as well as steps that the appellees may take in the future to complete this alleged dissipation. None of the alleged steps to accomplish this alleged action occurred in Texas or would occur in Texas. The trial court's grant of the special appearances is affirmed. Houston's 14th Court of Appeals, No. 14-12-00993-CV, 09-25-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

THE STATE OF TEXAS, Appellant v. BRIAN WEI, Appellee

The trial court granted the appellee's motion for dismissal in which he argued his right to a speedy trial was violated by the 51-month delay between the date charges were filed and the date of his arrest. Because the appellee had no knowledge charges were pending for over four years, the filing of a motion to dismiss does not weigh against the appellee. Because appellee did not acquiesce to the delay and the state failed to affirmatively prove his ability to defend himself was not impaired by the delay, prejudice is presumed. The trial court's order is affirmed. Houston's 14th Court of Appeals, No. 14-14-00054-CR, 10-02-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

PATRICIA ELIZABETH HARKCOM, APPELLANT v. THE STATE OF TEXAS, STATE

The appellant challenges her conviction. The appellant did not timely file a notice of appeal or a motion for an extension of time to file the notice of appeal. The only document that appellant filed between her date of sentencing and the 30-day deadline was her application for appointment of counsel. Although a notice of appeal is sufficient when it shows a defendant's desire to appeal, an application for counsel does not necessarily show a desire to appeal. The appeal is dismissed for want of jurisdiction. Fort Worth Court of Appeals, No. 02-12-00576-CR, 10-02-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

THE TOWN OF ANNETTA SOUTH, TEXAS; GERHARD KLEINSCHMIDT; JAMES ABLOWICH; PHILLIP KUNTZ; AND DAVID GOOLSBY, APPELLANTS/APPELLEES v. SEADRIFT DEVELOPMENT, L.P., APPELLEE/APPELLANT

The trial court found that a town's ordinance, requiring that all lots within the city's extraterritorial jurisdiction must be at least two acres in size, violates Texas Local Government Code §212.003(a)(4). Giving §212.003(a)(4) its plain meaning, the Legislature intended to impose a mandatory duty on municipalities to refrain from controlling or directing in a municipality's ETJ-whether explicitly or implicitly-the number of residential units built per acre. The trial court's judgment is affirmed. Fort Worth Court of Appeals, No. 02-12-00171-CV, 09-25-2014

COURT OF APPEALS OF TEXAS, NINTH DISTRICT, BEAUMONT

CARLOS OMAR CORDERO, Appellant v. STATE OF TEXAS, Appellee

The appellant challenges his conviction of four counts of alleged indecency with a child and two counts of alleged aggravated sexual assault of a child. A general "hearsay" objection by the defendant can be sufficient to inform the trial court of the defendant's complaint regarding testimony disclosing an outcry statement. Texas Code of Criminal Procedure article 38.072 applies only to outcry statements made by a person who is under the age of 18 when the outcry is made. The erroneous admission of the hearsay "outcry" evidence was harmless. The trial court's judgment is affirmed. Beaumont Court of Appeals, No. 09-13-00158-CR, No. 09-13-00159-CR, No. 09-13-00160-CR, No. 09-13-00161-CR, No. 09-13-00162-CR, No. 09-13-00163-CR, 09-24-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, NINTH DISTRICT, BEAUMONT

BECON CONSTRUCTION COMPANY, INC. AND BECHTEL EQUIPMENT OPERATIONS, INC., Appellants v. JOSE ALONSO, MIGUEL BETANCOURT, JOSE RODRIGUEZ, LUIS GUAJARDO, ALEJANDRO SALINAS, AND RICARDO SALINAS JR., Appellees

The appellants in this workers' compensation case were subcontractors on a construction project at a refinery. The exclusive remedy defense applies throughout all tiers of contractors at a worksite governed by a general workplace insurance plan. The Department of Insurance did not create an administrative penalty stripping entities of the exclusive remedy defense provided by the Legislature in the Texas Workers' Compensation Act for violations of administrative rules. The trial court's judgment is reversed and rendered. Beaumont Court of Appeals, No. 09-13-00295-CV, 09-25-2014

Practice Areas: Labor and Employment

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

THE STATE OF TEXAS, APPELLANT v. J.W. JOLLY III, APPELLEE

The trial court granted the appellant's motion to dismiss two prosecutions based on his contention that he was denied his right to a speedy trial. To the extent an eight year delay establishes presumptive prejudice, that prejudice is extenuated by the appellant's acquiescence in the delay. General anxiety alone is not sufficient proof of prejudice when it is no greater than the level normally associated with a criminal charge. The orders of dismissal are reversed and remanded. Amarillo Court of Appeals, No. 07-14-00188-CR, No. 07-14-00189-CR, 10-03-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

EX PARTE KEITH ROGERS POST

By way of restricted appeal, the Texas Department of Public Safety challenges an order of expunction. A plea to an offense that corresponds to the offense for which the applicant was arrested will serve to bar an expunction, even where the offense that an applicant pleads guilty to is a class C misdemeanor. The judgment of the trial court is reversed and judgment is rendered denying the expunction. Amarillo Court of Appeals, No. 07-14-00138-CV, 09-24-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

ROSS MANDEL AND LEA MANDEL, APPELLANTS v. LEWISVILLE INDEPENDENT SCHOOL DISTRICT; COUNTY OF DENTON, TEXAS; AND CITY OF PLANO, APPELLEES;

Homeowners filed this restricted appeal complaining of the validity of a default judgment against them and the tax sale of their residence. A return complies with Texas Rule of Civil Procedure 107 that includes the date of service but omits the hour. The naming of the taxing units in the citations was sufficient under Texas Rule of Civil Procedure 117a(4) to confer jurisdiction over those taxing units. The trial court's judgment is affirmed. Fort Worth Court of Appeals, No. 02-13-00171-CV AND NO. 02-13-00412-CV, 10-02-2014

Practice Areas: Taxation

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

GERARDO TOMAS RIVAS, APPELLANT v. THE STATE OF TEXAS, STATE

The appellant challenges the denial of his motion to suppress. An affidavit that identifies a named informant as the supplier of information upon which probable cause is based is sufficient if it is sufficiently detailed to suggest direct knowledge on the informant's part. The trial court's judgment is affirmed. Fort Worth Court of Appeals, No. 02-12-00062-CR, NO. 02-12-00063-CR, 09-25-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

LARRY PAUL HOLLAWAY, A/K/A LARRY PAUL HOLLOWAY, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges his conviction of alleged murder and alleged first degree felony aggravated assault. Evidence of serious bodily injury is insufficient where medical records show that the alleged victim suffered neither internal injuries nor bleeding complications arising from her hemophilia, her wound did not require stitches, and testimony regarding the seriousness of stab wounds was hypothetical and general. The trial court's judgment is modified to reflect conviction of second degree felony aggravated assaul, remanded, and otherwise affirmed. Texarkana Court of Appeals, No. 06-13-00255-CR, 10-01-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

BOBBY GLENN CANIDA, Appellant v. THE STATE OF TEXAS, Appellee

The appellant was acquitted of the charge of manufacture of methamphetamine in an amount of more than one gram but less than four grams. By its finding, the jury necessarily found all of the elements of the lesser-included offense of manufacture in an amount less than one gram. The evidence, that included ingredients and equipment, is legally sufficient to prove that the appellant manufactured methamphetamine in an amount less than one gram. In accordance with Thornton and Bowen, the judgment is modified to reflect a conviction for manufacture of methamphetamine in an amount less than one gram. Texarkana Court of Appeals, No. 06-11-00227-CR, 09-26-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

DENCO CS CORPORATION, Appellant v. BODY BAR, LLC, Appellee

A lessee engaged a contractor to renovate space pursuant to a reimbursement agreement with the lessor. The lessee filed suit against the contractor when the lessor refused to pay reimbursment because it discovered that the contractor had filed lien affidavits. The affidavit laying claim to statutory and constitutional mechanic's liens-which were not limited to the leasehold interest-did not validly encumber the property. Because the contract included all sums for labor required to complete the proposal and that the overtime workers labored on items expressly included in the proposal, the contractor's equitable claims were barred as a matter of law. The trial court's summary judgment is affirmed in part, and reversed and remanded in part. Texarkana Court of Appeals, No. 06-14-00022-CV, 09-26-2014

Practice Areas: Contracts

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

JOE BOYCE COX, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges the revocation of community supervision. The state alleged that the appellant had consumed alcohol based on positive readings from an electronic device. The state offered nothing to explain the scientific theory on which the reports were based. Nothing establishes that the science behind the method the device uses to collect data has been widely accepted in a sufficient number of trial courts through adversarial gatekeeping hearings. The state alleged also that the appellant did not have the device installed on the day he was released from jail; faced with conflicting instructions and at least extreme difficulty, if not impossibility, of performance, due process is offended in finding a violation. The trial court's judgment and sentence is reversed and remanded. Texarkana Court of Appeals, No. 06-13-00194-CR, 09-29-2014

COURT OF CRIMINAL APPEALS OF TEXAS

BRADLEY RAY McCLINTOCK, Appellant v. THE STATE OF TEXAS

The court of appeals held that the trial court should have granted the appellant's motion to suppress. The state contends that the court of appeals should not have reversed the appellant's conviction without first deciding whether the good-faith exception to the exclusionary rule applied. The state, as the prevailing party at trial, need not raise a particular argument in favor of the trial court's ruling in a reply brief on appeal as a predicate to later raising it in a discretionary review context. The court of appeals' judgment is vacated and remanded. Court of Criminal Appeals, No. PD-0925-13, 10-01-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

DAISY GUTIERREZ-RODRIGUEZ, Appellant v. THE STATE OF TEXAS

As a condition of probation, the appellant was ordered to pay restitution for missing items that the appellant had not been convicted of stealing. The restitution requirement was discussed during the punishment stage hearing, so appellant had an opportunity to object to it. By not objecting, she forfeited her complaint. The court of appeals' judgment is reversed and the trial court's judgment is affirmed. Court of Criminal Appeals, No. PD-1026-13, PD-1027-13, 10-01-2014

Practice Areas: Criminal Law