Recent Decisions

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

City of New Braunfels; Jan Kotylo, in her official capacity; Pat Clifton, in his official capacity; and Fritz Welsch, in his official capacity, Appellants v. Joseph Tovar, Appellee

The appellee, a police officer, sued a city and members of the civil service commission, seeking to compel the appellants to add 10 seniority points to which he claims entitlement, credit him with a grade of 74 on the written exam, and place his name on the promotion-eligibility list. By suing all of the civil service commission members in their official capacities, the appellee has sued the commission in substantive legal effect, thus invoking Civil Service Act §143.015. Under §143.033(c), only a fire fighter's "grade on the written examination" itself counts toward the passing grade of 70, while a police officer's has the benefit of his or her "grade"-a term referring to the total of the "grade on the written examination" and "points for seniority." The district court’s order denying the appellant’s plea to the jurisdiction is affirmed. City of New Braunfels v. Tovar, Austin Court of Appeals, No. 03-14-00693-CV, 5/7/15.

03-14-00693-CV
Bob Pemberton

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

Plasma Fab, LLC and Russell McCann, Appellants v. BankDirect Capital Finance, LLC, a Subsidiary of Texas Capital Bank, N.A.; and Scottsdale Insurance Company, Appellees

The appellant was sued for allegedly causing a fire that destroyed an apartment complex. The central issue is whether a general liability insurance policy the appellant purchased from an insurer and financed through a premium finance company, the appellees, was in effect at the time of the appellant’s loss. An insurer is not responsible for the failure of the premium finance company to comply with Texas Insurance Code §651.161. The finance company did not meet its burden of establishing as a matter of law that the limitation of liability in the premium finance agreement is conspicuous. The trial court’s order is reversed and remanded in part, and affirmed in part. Plasma Fab LLC v. BankDirect Capital Finance LLC, Austin Court of Appeals, No. 03-13-00331-CV, 5/8/15.

03-13-00331-CV
Melissa Goodwin

COURT OF CRIMINAL APPEALS OF TEXAS

Ex parte KENNETH VELA, Applicant

The applicant received stacked sentences, but on remand and resentencing the trial court did not issue a new stacking order. He complains that the TDCJ is treating his heroin possession sentence as if it were stacked onto the aggravated-robbery sentence. A remand for a new punishment hearing offers the opportunity to reassess whether the sentences at issue should be stacked. If the trial court decides that the sentences should be stacked,the proper course would be to stack the new sentence in the remanded case onto what is now a prior sentence in another case. Because the remand for a new punishment hearing in the aggravated-robbery case caused the aggravated-robbery sentence to be removed from the stacking order and because the trial court did not choose to stack the new aggravated-robbery sentence onto the sentence in the heroin case, the sentences in the two cases are running concurrently. Habeas relief is granted. Ex parte VELA, Court of Criminal Appeals, No. WR-37,070-02, 5/13/15.

WR-37,070-02
KELLER

COURT OF CRIMINAL APPEALS OF TEXAS

GILBERT TAPIA, JR., Appellant v. THE STATE OF TEXAS

The court of appeals held that due process prohibited the trial court from revoking appellant's probation after the second revocation hearing, based upon grounds that the trial court was aware of, but did not consider, at the first revocation hearing. Dicta in Rogers, as strictly followed by the court of appeals, is distinguishable: 1. The revocation of appellant's community supervision occurred after a second revocation proceeding and was based upon newly alleged drug and alcohol violations; 2. Even though the trial judge, the state, and appellant were all aware of the purported drug and alcohol violations at the first hearing, such violations were not alleged in the first written motion to revoke, and no evidence was presented at the first hearing in support of such violations. The court of appeals’ judgment is reversed and the trial court’s judgment is reinstated. TAPIA v. STATE, Court of Criminal Appeals, No. PD-0729-14, 5/13/15.

PD-0729-14
RICHARDSON

COURT OF CRIMINAL APPEALS OF TEXAS

THE STATE OF TEXAS v. ADELFO RAMIREZ CRUZ, Appellee

The court of appeals reversed the trial court's order suppressing the appellee's statements. A question that seeks to elicit biographical data may be deemed "not interrogation" under either of two theories: 1. Such a question may be deemed "not interrogation" because it does not meet the general test for interrogation, i.e. it does not meet the "should know" test; 2. Under the booking (or administrative) exception, a court could decide that a particular question about biographical data was a routine administrative inquiry. The absence of evidence of standardized or routine procedures in this case is at least a relevant factor in determining whether the questioning of appellee was sufficiently administrative to be excepted from the Miranda rule. The court of appeals’ judgment is reversed and the trial court’s judgment is affirmed. STATE v. CRUZ, Court of Criminal Appeals, No. PD-0082-14, 5/13/15.

PD-0082-14
KELLER

SUPREME COURT OF TEXAS

MAGDALENA ADRIENNA ABUTAHOUN, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE HEIRS AND ESTATE OF ROBERT WAYNE HENDERSON, DECEASED, AND TANYA ELAINE HENDERSON, INDIVIDUALLY IN HER OWN RIGHT AND AS NEXT FRIEND OF Z.Z.H., A MINOR, PETITIONERS, v. THE DOW CHEMICAL COMPANY, RESPONDENT

After developing mesothelioma, the plaintiff sued a chemical company alleging that he was exposed to asbestos-containing products while working as an independent contractor at the chemical company's facility. The trial court granted partial summary judgment to the chemical company based on Texas Civil Practice and Remedies Code chapter 95, and the court of appeals affirmed. Chapter 95 applies to an independent contractor's claims for damages caused by the contemporaneous negligent acts of a property owner. The court of appeals’ judgment is affirmed. ABUTAHOUN v. THE DOW CHEMICAL CO.,

13-0175
Paul W. Green

SUPREME COURT OF TEXAS

IN RE LONGVIEW ENERGY COMPANY, RELATOR - and - IN RE HUFF ENERGY FUND, L.P. AND RILEY-HUFF ENERGY GROUP, LLC, CROSS-RELATORS

The trial court applied the caps on the security required for appeal separately to each of four jointly and severally liable defendants. The court of appeals applied the caps to the judgment as a whole. Texas Civil Practice and Remedies Code Section 52.006(a)(2) and Texas Rule of Civil Procedure 24.2(a)(1) require security for interest, but only on compensatory damages. The trial court’s order to the relator to produce essentially all information concerning the operation of the assets over which the judgment imposed a constructive trust was not an abuse of discretion: Rule 621a permits discovery relevant to Rule 24 motions. The trial court was not required to have evidence of a threat of dissipation of assets. Mandamus relief is denied. IN RE LONGVIEW ENERGY CO., Texas Supreme Court, No. 14-0175, 5/8/15.

14-0175
Nathan L. Hecht

SUPREME COURT OF TEXAS

JESUS RUBEN MOLINA, PETITIONER, v. ELIAS ALVARADO, RESPONDENT

The plaintiff sued a city and a city employee after a city vehicle hit the plaintiff’s vehicle. The trial court denied the employee’s motion for summary judgment — that contended the plaintiff made an irrevocable election to sue the city — and the court of appeals affirmed. The plaintiff initially named only the governmental unit itself, not its employee. If the plaintiff possessed insufficient information to determine whether the employee was acting within the scope of his employment, the prudent choice would have been to sue the employee, and await a factual resolution of that question. The plaintiff essentially chose his defendant before being required to do so by the election-of-remedies provision. This choice is an irrevocable election under Texas Civil Practice and Remedies Code §101.106. The court of appeals’ judgment is reversed and rendered. MOLINA v. ALVARADO, Texas Supreme Court, No. 14-0536, 5/8/15.

14-0536

SUPREME COURT OF TEXAS

RSUI INDEMNITY COMPANY, PETITIONER, v. THE LYND COMPANY, RESPONDENT

An excess insurance policy covered multiple commercial properties and limited the coverage to "the least" of three alternative amounts. The Scheduled Limit of Liability endorsement at issue in this case is reasonably subject to both parties' proposed constructions and is therefore ambiguous. The court of appeals’ judgment adopting the insured’s proposed construction is affirmed. RSUI INDEMNITY CO. v. THE LYND CO., Texas Supreme Court, No. 13-0080, 5/8/15.

13-0080
Jeffrey S. Boyd

SUPREME COURT OF TEXAS

LIFE PARTNERS, INC. AND MILKIE/FERGUSON INVESTMENT, INC., PETITIONERS, v. MICHAEL ARNOLD, JANET ARNOLD, STEVE SOUTH AS TRUSTEE AND ON BEHALF OF THE SOUTH LIVING TRUST, JOHN S. FERRIS, M.D., CHRISTINE DUNCAN, AND ALL OTHERS SIMILARLY SITUATED, RESPONDENTS consolidated for oral argument with LIFE PARTNERS HOLDINGS, INC., LIFE PARTNERS, INC., BRIAN. D. PARDO, R. SCOTT PEDEN, ADVANCE TRUST & LIFE ESCROW SERVICES, L.T.A., AND PURCHASE ESCROW SERVICES, LLC, PETITIONERS, v. STATE OF TEXAS, RESPONDENT

These consolidated cases involve the business of life settlement agreements, whereby a purchaser buys existing life insurance policies and sells interests in those policies to others. The Texas Securities Act's definition of "securities" must be construed broadly to maximize the protection it provides to investors, while focusing on the economic realities of the transaction regardless of any labels or terminology the parties may have used. An "investment contract" for purposes of the Texas Securities Act means a contract, transaction, or scheme through which a person pays money to participate in a common venture or enterprise with the expectation of receiving profits, under circumstances in which the failure or success of the enterprise, and thus the person's realization of the expected profits, is at least predominately due to the entrepreneurial or managerial, rather than merely ministerial or clerical, efforts of others. The entrepreneurial or managerial efforts that are relevant to this inquiry, whether those of the purchasers or of others, include those that are made prior to the transaction as well as those that are made after. The life settlement agreements at issue are securities. The court of appeals’ judgments are affirmed. LIFE PARTNERS INC. v. STATE OF TEXAS, Texas Supreme Court, No. 14-0122, 5/8/15.

14-0122 consolidated for oral argument with NO. 14-0226
Jeffrey S. Boyd

SUPREME COURT OF TEXAS

WAYNE VENTLING, PETITIONER, v. PATRICIA M. JOHNSON, RESPONDENT

In Johnson II, the court of appeals remanded the case with instructions to the trial court to enter judgment granting the respondent’s enforcement motion and awarding her $142,500 in unpaid contractual alimony. The trial court's only task on remand with respect to the merits of the alimony claim was the ministerial act of entering the judgment as instructed. Thus, the court of appeals effectively rendered the judgment the trial court should have rendered on June 16, 2009, and it did so because no further proceedings or evidence was necessary as to the respondent’s only substantive claim. The respondent is entitled to postjudgment interest on the alimony award from June 16, 2009; the respondent is owed prejudgment interest for the years leading up to the June 16, 2009, final judgment. An award for conditional appellate attorney's fees accrues postjudgment interest from the date the award is made final by the appropriate appellate court's judgment. The court of appeals’ judgment is reversed and remanded in part, and affirmed in part. VENTLING v. JOHNSON, Texas Supreme Court, No. 14-0175, 5/8/15.

14-0095
Debra H. Lehrmann

SUPREME COURT OF TEXAS

CITY OF DALLAS, PETITIONER, v. TCI WEST END, INC., RESPONDENT

After a property owner demolished a building located in a historic overlay district, the city of Dallas sued the property owner for civil penalties under of the Texas Local Government Code §54.017, as authorized by §54.012 of the code. The court of appeals' interpretation of §54.012(3) as incorporating a health-and-safety limitation is contrary to the plain and unambiguous language in the statute and would render meaningless and redundant language in that section expressly circumscribing other categories of ordinances enforceable under subchapter B. That portion of the court of appeals’ judgment is reversed and remanded. CITY OF DALLAS v. TCI WEST END INC., Texas Supreme Court, No. 13-0795, 5/8/15.

13-0795

SUPREME COURT OF TEXAS

GHARDA USA, INC. AND GHARDA CHEMICALS, LTD., PETITIONERS, v. CONTROL SOLUTIONS, INC., UNITED PHOSPHORUS, INC., AND MARK BOYD, RESPONDENTS

The plaintiffs sued a chemical company after a warehouse fire. Four experts testified on the cause of the fire. Interrelated expert testimony cannot be used to form a hybrid for which no single expert can offer support. The court of appeals’ judgment is reversed and the trial court’s take-nothing judgment is reinstated. GHARDA USA INC. v. CONTROL SOLUTIONS INC.

12-0987
Paul W. Green

SUPREME COURT OF TEXAS

CUAHUTEMOC ("TIM") GONZALEZ, PETITIONER, v. ERMA GONZALES RAMIREZ, INDIVIDUALLY, AS REPRESENTATIVE OF THE ESTATE OF RAYMOND RAMIREZ, DECEASED, AND AS NEXT FRIEND OF R.L.R., J.R., M.R., R.R., AND D.R., MINOR CHILDREN; JANIE CROSBY; AND SAMUEL LEE JACKSON, INDIVIDUALLY, AS NEXT FRIEND OF T.C.J., A MINOR CHILD, AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF REXEE JO JACKSON, DECEASED, RESPONDENTS

Following an accident between a truck and a car, the plaintiffs sued a farmer who had contracted with the truck driver's employer to haul silage. Prior Texas cases that found motor-carrier liability under the Texas Regulations based on duties created by Part 376 of the Federal Regulations are disapproved. Under the circumstances presented here, where the plaintiffs have shown only that the farmer told the trucking company where to pick up and deliver, and loaded the trucks, the farmer was acting as a shipper, not a motor carrier. The farmer’s unexercised general right to refuse to load an unsafe truck does not establish that that the farmer owed the truck driver a common-law duty. The court of appeals’ judgment is reversed and rendered in part, and remanded. GONZALEZ v. RAMIREZ, Texas Supreme Court, No. 14-0107, 5/8/15.

14-0107

SUPREME COURT OF TEXAS

SHELL OIL COMPANY AND SHELL INTERNATIONAL, E&P, INC., PETITIONERS, v. ROBERT WRITT, RESPONDENT

The petitioner was sued for alleged defamation after it provided an internal report to the Department of Justice. The trial court granted summary judgment for the petitioner, and the court of appeals reversed. At all relevant times, the petitioner was a target of the DOJ's investigation, and was compelled to cooperate. The communication was absolutely priviliged. The court of appeals’ judgment is reversed and the trial court’s judgment is reinstated. SHELL OIL CO. v. WRITT, Texas Supreme Court, No. 13-0552, 5/15/15.

13-0552
Phil Johnson

SUPREME COURT OF TEXAS

GENE E. PHILLIPS, INDIVIDUALLY AND D/B/A PHILLIPS OIL INTERESTS, LLC, EURENERGY RESOURCES CORPORATION, SYNTEK WEST, INC., CABELTEL INTERNATIONAL CORPORATION, NATRON INVESTMENTS, A&B CAPITAL CORPORATION, SOUTHMARK CORPORATION, BASIC CAPITAL MANAGEMENT, INC., MAY TRUST, O.S. HOLDINGS, INC., AND ENVICON DEVELOPMENT CORPORATION, PETITIONERS, v. CARLTON ENERGY GROUP, LLC, RESPONDENT

The defendant in this tortious interference case denies liability but argues that the evidence of the fair market value of the plaintiff's lost interest is too speculative to support the jury's award of damages. Reasonable certainty of proof is required when when lost profits are used to determine the market value of property for which recovery is sought; this requirement should not be used to deny a claimant damages equal to the value the market would have placed on lost property. Factual disputes related to the bases for alter ego liability are for the jury, but whether an imposition of alter ego liability is justified is a matter of law for the court. The court of appeals’ judgment is affirmed in part, reversed in part, and remanded. PHILLIPS v. CARLTON ENERGY GROUP LLC, Texas Supreme Court, No. 12-0255, 5/8/15.

12-0255
Nathan L. Hecht

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, PlaintiffAppellee, v. FRANCISCO ANTONIO COLORADO CESSA, also known as Pancho, also known as Francisco Antonio Colorado-Cessa; JOSE TREVINO MORALES; EUSEVIO MALDONADO HUITRON, also known as Chevo, also known as Eusevio Huitron-Maldonado; FERNANDO GARCIA-SOLIS, also known as Freddy, also known as Fer, also known as Fernando Solis Garcia, DefendantsAppellants.

The appellants challenge their convictions for their alleged involvement in a money-laundering-conspiracy. The receipt of large structured cash deposits from known drug dealers will not support conviction of conspiracy to commit financial-transaction money laundering without additional evidence to show that the alleged conspirator knew the conspiracy’s purpose and acted with the intent to further that purpose. A jury instruction on commingling must make clear that the inference on intent is permissive and not mandatory. One conviction is reversed and rendered as an acquittal, another is vacated and remanded, and the remaining sentences and convictions are affirmed. UNITED STATES v. CESSA, 5th U.S. Circuit Court of Appeals, No. 13-50849, 5/7/15.

13-50849, Consolidated with No. 13-51003
EDWARD C. PRADO

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

ALEJANDRO GARCIA DE LA PAZ, Plaintiff - Appellee v. JASON COY, United States Customs and Border Protection Officer; MARIO VEGA, United States Customs and Border Protection Officer, Defendants - Appellants;

The appellants, illegal aliens stopped in central Texas, filed Bivens suits against the arresting agents. The district court denied motions to dismiss. Bivens actions are not available for claims that can be addressed in civil immigration removal proceedings. The district court’s orders are reversed and remanded. DE LA PAZ v. COY, 5th U.S. Circuit Court of Appeals, No. 13-50768, 5/14/15.

13-50768, Cons w/ 14-10018
EDITH H. JONES

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

IN RE: DEEPWATER HORIZON;

The appellant challenges the district court’s approval of the Final Rules Governing Discretionary Court Review of Appeal Determinations for claims processed through the Economic and Property Damages Settlement Agreement. Appellate jurisdiction exists under the collateral order doctrine; because the Final Rules preclude appeals of certain cases to the district court, and because they are silent as to appeals to this court and lack requirements to file requests or docket orders on the civil docket, they would be unreviewable from a final judgment of claim determinations. Where a settlement agreement does not resolve claims itself but instead establishes a mechanism pursuant to which the district court will resolve claims, parties must expressly waive what is otherwise a right to appeal from claim determination decisions by a district court. The Final Rules violate the right to appeal claim determinations with its lack of docketing provisions providing for a proper appeal. The district court’s order is vacated in part, affirmed in part, and remanded. IN RE: DEEPWATER HORIZON, 5th U.S. Circuit Court of Appeals, No. 13-30843, 5/8/15.

13-30843
FORTUNATO P. BENAVIDES

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

IN RE: DEEPWATER HORIZON. ROBERT YOUNG, Plaintiff, ELTON JOHNSON, Intervenor Plaintiff - Appellee v. BP EXPLORATION & PRODUCTION, INCORPORATED; BP PRODUCTS NORTH AMERICA, INCORPORATED; BP CORPORATION NORTH AMERICA, INCORPORATED, Defendants - Appellants

The appellant challenges the district court’s enforcement of a putative $2.7 million settlement agreement against it in the appellee’s favor. The determination letter sent by the claims facility and accepted by the appellant was a binding agreement; the letter constituted an offer, the agreement does not fail because it did not include a release, and the agreement does not fail for lack of mutuality. Where the defendant subsequently uncovers previously unavilable evidence that the plaintiff was in fact not injured at all, or sustained only de minimis injuries, the defendant may argue that the plaintiff fraudulently induced it to enter into a settlement agreement. In such circumstances, the district court must hold an evidentiary hearing to weigh the newly-discovered evidence of fraud. The district court’s judgment is affirmed in part, and vacated and remanded. IN RE: DEEPWATER HORIZON, 5th U.S. Circuit Court of Appeals, No. 14-30269, 5/13/15.

14-30269
W. EUGENE DAVIS

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

HUMANA HEALTH PLAN, INCORPORATED, Plaintiff - Appellee v. PATRICK NGUYEN, Defendant - Appellant

The appellant is a participant in an ERISA-governed employee welfare plan. The plan manager disregarded the plan’s decision to not seek reimbursement from the appellant. The district court erred in determining that the plan manager is an ERISA fiduciary. The district court focused on the subrogation and recovery clause and determined that its broad language gave the plan manager independent power to investigate and prosecute claims, even over the plan's objections, but the clauses do not show that the plan manager had discretion over the plan or its assets. The district court failed to explain why the plan manager is not a ministerial agent. The district court’s decision is reversed and remanded. HUMANA HEALTH PLAN INC. v. NGUYEN, 5th U.S. Circuit Court of Appeals, No. 14-20358, 5/11/15.

14-20358
EDITH BROWN CLEMENT

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

LARRY THOMAS, JR., Petitioner - Appellant v. JERRY GOODWIN, Warden, David Wade Correctional Center, Respondent - Appellee

A prisoner appeals the dismissal of his 28 U.S.C. §2254 petition as untimely. The appellant alleges he filed a direct review writ application with the Louisiana Supreme Court within the required time. That court returned his documents as “unfiled.” When the appellant responded by mailing his writ application to the Louisiana Supreme Court, his writ application was nearly four months late. Under Butler, the appellant’s conviction became final when the 30-day time limit for seeking review by the Louisiana Supreme Court expired. The district court’s dismissal is affirmed. THOMAS v. GOODWIN, 5th U.S. Circuit Court of Appeals, No. 13-31082, 5/15/15.

13-31082
STEPHEN A. HIGGINSON

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

MICHAEL ALEXANDER, Plaintiff - Appellant v. EXPRESS ENERGY SERVICES OPERATING, L.P., Defendant-Appellee

The appellant was injured while plugging a decommissioned oil well off the coast of Louisiana. The appellant failed to carry his burden of showing that he is a seaman. Approximately 65% of the appellant’s jobs involved a fixed platform only, without the help of an adjacent vessel. It is not sufficient under Chandris that the appellant was merely near a vessel on more than 30% of his jobs or that he performed some incidental work on a vessel on those jobs; to be a seaman, he must show that he actually worked on a vessel at least 30% of the time. The district court’s judgment is affirmed. MICHAEL ALEXANDER, Plaintiff - Appellant v. EXPRESS ENERGY SERVICES OPERATING, L.P., Defendant-Appellee

14-30488
W. EUGENE DAVIS

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

IN RE: DEEPWATER HORIZON;

The appellant challenges settlement awards it paid to nonprofits through its Court-Supervised Settlement Program. The use of the word "business" in the Business Economic Loss framework of the settlement agreement does not reflect an intent to limit "revenue" to funds obtained only through commercial, profit-seeking activity. The Nonprofit-Revenue Interpretation does not conflict with the agreement’s use of the terms “profit,” “earn,” or “sales.” The interpretation of the agreement does not place it in violation of Rule 23 or Article III. Cy pres funds may be counted as monies typically treated as revenue. Donated legal services count as revenue. The district court’s judgment is affirmed. IN RE: DEEPWATER HORIZON, 5th U.S. Circuit Court of Appeals, No. 13-31296, 5/8/15.

13-31296 c/w, Nos. 13-31299, 13-31302
EDWARD C. PRADO

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSHUA CONLAN, Also Known as Joco, Defendant-Appellant.

The appellant challenges his conviction for allegedly stalking a television news reporter and her husband. 18 U.S.C. § 2261A is not unconstitutionally vague and does not criminalize constitutionally protected free expression. The combination of intent and effect distinguishes §2261A from the ordinance in Ku Klux Klan. The unit of prosecution is the targeted individual. The judgments of conviction and sentence are affirmed. UNITED STATES v. CONLAN, 5th U.S. Circuit Court of Appeals, No. 13-50842, 5/14/15.

13-50842
JERRY E. SMITH

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

ROGER PRICE, Petitioner - Appellant v. WARDEN FORCHT WADE CORRECTIONAL CENTER, Respondent - Appellee

The appellant in this habeas matter argues that applying Louisiana's good-time forfeiture law violated the Ex Post Facto Clause. Greenfield held that a good-time forfeiture law enacted after a prisoner's sentencing is retrospective, even if forfeiture is triggered by the parolee's post-enactment conduct. Knowing acceptance of parole conditions by conduct in Greenfield is not materially different from the appellant’s acceptance by contract. The judgment of the Louisiana Supreme Court is reversed and remanded. PRICE v. WARDEN FORCHT WADE CORRECTIONAL CENTER, 5th U.S. Circuit Court of Appeals, No. 14-30349, 5/12/15.

14-30349
EDITH BROWN CLEMENT

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

SHAWN WILLIAMS, SR. AND PLESHETTE WILLIAMS, INDIVIDUALLY, AND AS REPRESENTATIVES OF THE ESTATE OF SHAWN WILLIAMS, JR., JOE HOLLINGSHEAD, SHAY HOLLINGSHEAD, AND MARLENE HAWKINSON, Appellants v. THE CITY OF BAYTOWN, Appellee

The trial court found that a city was immune from liability in this case alleging that police officers negligently caused a collision resulting in a death. To establish a Tort Claims Act waiver, it is not sufficient that the officers used their patrol cars to execute an unsuccessful box-in maneuver; rather, their use of the vehicles must be an actual cause of the injury. Allegations of misuse of tangible personal property — here a spike strip — require more than involvement of the property; there must be a causal nexus between the misuse of the property and the injuries sustained. The trial court’s order is affirmed. WILLIAMS v. CITY OF BAYTOWN, Houston’s 1st Court of Appeals, No. 01-14-00569-CV, 5/5/15.

01-14-00569-CV
Jane Bland

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

WILLIAM READY, Appellant v. ALPHA BUILDING CORPORATION, Appellee AND WILLIAM READY, Appellant v. MICHAEL DOUGLAS, Appellee

The appellant argues that the trial court erred by granting summary judgments without allowing him the opportunity to respond. As distinguished from Viesca, the appellant raised his complaints about lack of notice of a certain submission date in a motion for new trial that he filed promptly upon learning of the trial court's ruling; those complaints are preserved. The notices of submission stated that the motion would be submitted "after" a date certain, but that indefinite language did not inform the appellant of a specific submission date or establish a deadline for his response. The summary judgments are reversed and remanded. READY v. ALPHA BUILDING CORP., Houston’s 1st Court of Appeals, No. 01-14-00409-CV, 5/5/15.

. 01-14-00409-CV 01-14-00412-CV
Michael Massengale

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

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

The appellant challenges an adverse summary judgment in its protest of the appraisal of its natural gas stored in Harris County and the resulting assessment of ad valorem taxes. 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. ETC MARKETING LTD. v. HARRIS COUNTY APPRAISAL DISTRICT, Houston’s 1st Court of Appeals, No. 01-12-00264-CV, 5/5/15.

01-12-00264-CV
Michael Massengale

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

ALISHA MARIE DRAKE, Appellant v. THE STATE OF TEXAS, Appellee

During voir dire, a juror stated that his religious beliefs prevented him from viewing certain evidence. The trial court made several comments to the juror and had the juror arrested. Even if the juror’s tone was disrespectful — which is not in the record — it is a judge's role to maintain decorum without resorting to personal argument. The trial judge's act of arresting the juror combined with her comments during voir dire is fundamental error. The conviction is reversed and remanded for new trial. DRAKE v. STATE, Houston’s 14th Court of Appeals, No. 14-13-00855-CR, 5/5/15.

14-13-00855-CR
Ken Wise

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

CROCKETT COUNTY, TEXAS, Appellant, v. KLASSEN ENERGY, INC., Appellee.

A county appeals the trial court's denial of its plea to the jurisdiction arguing it is immune from a suit challenging its decision to close a public road almost two decades ago. The two-year filing deadline is a statutory prerequisite to suit. Texas Civil Practice and Remedies Code §16.005 is a statute of repose not subject to the discovery rule. The trial court's judgment is vacated for want of jurisdiction. CROCKETT COUNTY v. KLASSEN ENERGY INC., El Paso Court of Appeals, No. 08-14-00123-CV, 4/30/15.

08-14-00123-CV
YVONNE T. RODRIGUEZ

Practice Areas: Residential and Commercial Real Estate

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

SYLVESTER KELLY, Appellant v. THE STATE OF TEXAS, Appellee

The state's closing argument alluded to the appellant looking like "an extremely scary man." It is improper argument to suggest a witness is afraid of the defendant absent supporting evidence in the record. The statement was not egregious, and it was short and not emphasized. The error was not preserved, and would be found harmless if it was preserved. The trial court's judgment is affirmed. KELLY v. STATE, Texarkana Court of Appeals, No. 06-12-00141-CR, 5/6/15.

06-12-00141-CR
Bailey C. Moseley

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

BARNEY SAMUEL BRADSHAW, Appellant v. THE STATE OF TEXAS, Appellee

The trial court allowed testimony concerning alleged extraneous acts of sexual misconduct. No-billed conduct can be admissible as an extraneous offense. Nothing in Texas Code of Criminal Procedure article 38.37 removes evidence, otherwise admissible under §2 and 2-a, from Texas Rule of Evidence 403 scrutiny. In the absence of the extraneous-offense evidence, this would be a "he said, she said" case — the trial court did not abuse its discretion in admitting testimony of the extraneous offenses. The trial court’s judgment is affirmed. BRADSHAW v. STATE, Texarkana Court of Appeals, No. 06-14-00165-CR, 5/5/15.

06-14-00165-CR
Josh R. Morriss, III

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Richard ABRAMS, Appellant v. Marguerite Salinas a/k/a Marguerite Y. Salinas f/k/a Marguerite ABRAMS and Ashely Abrams a/k/a Ashley N. Abrams, Appellees

A 1988 divorce decree required the appellant to pay half of his daughter’s reasonable college expenses. In 2013, the daughter and her mother filed suit to enforce the agreed judgment, and the trial court awarded half the expenses the daughter had incurred. For an action to enforce a payment ordered by the judgment but predicated on future conditions, the dormant judgment statute does not begin to run on the date the judgment becomes final; rather, it begins to run when the payment becomes due. The trial court’s judgment is affirmed. ABRAMS v. Salinas, San Antonio Court of Appeals, No. 04-14-00104-CV, 5/6/15.

04-14-00104-CV
Patricia O. Alvarez

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

JOHN GONZALES III, Appellant v. The STATE of Texas, Appellee

The appellant contends the juvenile court erred in transferring jurisdiction to the criminal court and the criminal court erred in denying his motion to suppress. The juvenile court made case-specific findings of fact with respect to the Texas Family Code §54.02(f) factors. Merely being questioned by an officer, even when the officer has reason to believe the juvenile is involved in a criminal activity, does not constitute custody. The trial court’s judgment is affirmed. GONZALES v. STATE, San Antonio Court of Appeals, No. 4-14-00352-CR, 5/6/15.

04-14-00352-CR
Patricia O. Alvarez

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Marcos MELENDEZ, Appellant v. The STATE of Texas, Appellee

The appellant was placed in handcuffs by security at a nightclub after an unidentified person told a manager that the appellant was attempting to sell cocaine. A police officer arrived six minutes later. The appellant was asked two questions before the officer searched his pockets and allegedly found a controlled substance. The appellant was detained, not arrested. The trial court was not required to enter findings of fact and conclusions of law in response to the appellant’s pro se request because the appellant was represented by counsel when the request was filed. The trial court’s judgment is affirmed. MELENDEZ v. STATE, San Antonio Court of Appeals, No. 04-14-00513-CR, 5/6/15.

04-14-00513-CR
Sandee Bryan Marion

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

TENET HOSPITALS, LTD. A TEXAS LIMITED PARTNERSHIP, D/B/A PROVIDENCE MEMORIAL HOSPITAL, Appellant, v. ESPERANZA NARAH GARCIA, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF ARMANDO GARCIA AND FOR ALL WRONGFUL DEATH BENEFICIARIES, INCLUDING MINOR ALEXA GARCIA, Appellee.

The trial court denied a hospital’s challenge to a preliminary expert report. Texas Civil Practice and Remedies Code §74.351(r)(5)(C) incorporates the rules of evidence in the context of the expert's qualifications, not the substance of the opinion itself. Although Texas Rule of Evidence 702 and 703 requirements will fully apply to the opinions at other stages of the case, it is inappropriate at this early stage to attempt to apply Robinson and its progeny to the process. The trial court’s order is affirmed. TENET HOSPITALS LTD. v. GARCIA, El Paso Court of Appeals, No. 08-14-00087-CV, 4/22/15.

08-14-00087-CV
STEVEN L. HUGHES

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

In the Matter of C.J.B., A Juvenile.

After the appellant, a juvenile, failed to complete court ordered treatment, the trial court granted the state’s motion to revoke supervision and commit him to TJJD. There is legally and factually sufficient evidence to support the trial court's affirmative findings on Texas Family Code §54.05(m)(1)(A-C), and the appellant's repeated failure to comply with treatment made the trial court's exercise of discretion reasonable. The trial court’s judgment is affirmed. In the Matter of C.J.B., El Paso Court of Appeals, No. 08-14-00002-CV, 4/29/15.

08-14-00002-CV
YVONNE T. RODRIGUEZ

COURT OF APPEALS OF TEXAS, ELEVENTH DISTRICT, EASTLAND

DEBORAH BOWEN, Appellant v. THE STATE OF TEXAS, Appellee

The trial court convicted appellant of the second-degree offense of misapplication of fiduciary property, as instructed by the Court of Criminal Appeals on remand. The Court of Criminal Appeals did not violate the Double Jeopardy clause by reversing the court of appeals’ acquittal and remanding for a new punishment hearing. Prior to Bowen II, a defendant could forego requesting a lesser included instruction when the defendant thought that there was insufficient evidence to support the charged offense in hopes that the defendant would be acquitted by the jury or on appeal. Although Bowen II might have changed the defensive strategy for requesting jury instructions on lesser included offenses, it did not violate due process. The trial court’s judgment is affirmed. BOWEN v. STATE, Eastland Court of Appeals, No. 11-13-00114-CR, 4/30/15.

11-13-00114-CR
JIM R. WRIGHT

COURT OF APPEALS OF TEXAS, ELEVENTH DISTRICT, EASTLAND

LISA KARL, Appellant v. BRAZOS RIVER AUTHORITY, Appellee

The trial court granted the plea to the jurisdiction of the Brazos River Authority in this alleged premises liability case. The plaintiff alleges she was injured when she slipped off of a loose step at a gatekeeper booth. A person is engaged in "recreation" under the recreational use statute when the person is on the governmental unit's premises for a recreational activity as defined in the statute and is traveling to and from the recreational area. The trial court’s order is affirmed. KARL v. BRAZOS RIVER AUTHORITY, Eastland Court of Appeals, No. 11-13-00010-CV, 4/23/15.

11-13-00010-CV
JOHN M. BAILEY

COURT OF APPEALS OF TEXAS, ELEVENTH DISTRICT, EASTLAND

VENTURE COTTON COOPERATIVE AND NOBLE AMERICAS CORP., Appellants v. SHELBY ALAN FREEMAN ET AL., Appellees

The trial court found unconscionable an arbitration agreement between the appellant, a cotton cooperative-marketing association, and the appellees, cotton farmers. The court of appeals affirmed, and the Texas Supreme Court reversed and remanded for consideration of remaining arguments on the issue of unconscionability. The appellees did not present sufficient evidence to show that arbitration of their claims would be unconscionable on the ground that the arbitral forum was cost prohibitive. Appellees’ arguement that their right to discovery may be limited in the arbitral forum does not make the agreement unconscionable. Because the appellees failed to present evidence that the American Cotton Shippers Association will in fact provide biased arbitrators to hear appellees' case, that appellants' legal counsel will in fact continue to represent both appellants and the ACSA during the arbitration proceedings, or that appellants have access to pertinent information that appellees cannot in fact obtain, appellees have failed to show that the rules prevent them from effectively vindicating their rights in the arbitral forum. The trial court’s orders are reversed and remanded. VENTURE COTTON COOPERATIVE v. FREEMAN, Eastland Court of Appeals, No. 11-11-00093-CV, 4/30/15.

11-11-00093-CV
JIM R. WRIGHT

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

NORTH TEXAS MUNICIPAL WATER DISTRICT, Appellant v. JENNIE BALL A/K/A JENNY TISSING AND JEFFREY TISSING, Appellees

The appellees built a fence on an easement owned by the appellant, North Texas Municipal Water District. The easement prohibits a structure when the facts indicate it was designed as a continuous fixture. The easement's prohibition contains no exception for fences. The placement of the structure interferes with the district's use of the easement for its intended purposes. The trial court’s judgment in favor of the appellees is reversed, rendered, and remanded. NORTH TEXAS MUNICIPAL WATER DISTRICT v. BALL

05-14-00393-CV
MICHAEL J. O'NEILL

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

INWOOD NATIONAL BANK, Appellant v. WELLS FARGO BANK, N.A. AS TRUSTEE AND U.S. TRUST, BANK OF AMERICA PRIVATE WEALTH MANAGEMENT, Appellees;

The trial court denied the appellant’s motion to dissolve a writ of garnishment. The term “advance” in Texas Business and Commerce Code §9.323(b) does not include a promissory note that the parties to an ongoing commercial relationship intended to be solely a renewal and extension of an existing indebtedness and that did not place any additional burden on the collateral securing the loan. The trial court's judgment is reversed, in part, and rendered granting the appellant’s motion to dissolve the writ of garnishment as to the assets in an investment account. INWOOD NATIONAL BANK v. WELLS FARGO BANK N.A., Dallas Court of Appeals, No. 05-13-01689-CV, 4/29/15.

05-13-01689-CV
ROBERT M. FILLMORE

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

HAL CREWS AND DEBRA LEITCH, APPELLANTS v. DKASI CORPORATION, DEBRA H. HOLLEY, DAVID HOLLEY AND ASI GYMNASTICS, INC., APPELLEES

The appellants challenge the trial court’s summary judgment regarding a Rule 11 agreement. As long as the parties agree to the essential terms of the contract, the agreement may leave other non-essential provisions open for future agreement. In accepting the appellant’s proposal, the appellee’s attorney allegedly said, "I hope we are able to resolve additional issues as effectively as we have resolved the buy-out issue." Accordingly, the parties' Rule 11 agreement does not fail for lack of an essential term. By failing to timely object, the appellants waived their electronic signature argument. It is an abuse of discretion to award attorney's fees under the Declaratory Judgment Act when the statute is relied upon solely as a vehicle to recover such fees. The attorney’s fee award is reversed, and the trial court’s judgment is otherwise affirmed. CREWS v. DKASI CORP., Dallas Court of Appeals, No. 05-14-00544-CV, 4/21/15.

05-14-00544-CV
DAVID L. BRIDGES

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

FARIHA ASHFAQ, Appellant v. MOHAMMAD ASHFAQ, Appellee

The appellant challenges the dismissal of her petition for divorce. The trial court acted within its discretion in recognizing the Pakistani divorce — that occurred before the appellant petitioned for a Texas divorce — as valid as a matter of comity. Although the record contains conflicting evidence as to whether the husband timely served the appellant with notice of the divorce as required under a Muslim Family Law Ordinance, the trial court’s credibility determination supports the implicit conclusion that the procedure prescribed by the ordinance satisfied due process. The trial court’s judgment is affirmed. ASHFAQ, v. ASHFAQ, Houston’s 1st Court of Appeals, No. 01-14-00329-CV, 4/28/15.

01-14-00329-CV
Jane Bland

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

IN RE EXPUNCTION

The state appeals the grant of an expunction petition and the denial of its motion for new trial. Ex parte E.E.H., holding that Texas Code of Criminal Procedure Article 55.01 in its then-effective form permitted expunction of less than all charges arising from a single arrest, has been been abrogated by subsequent legislative action. To obtain expunction, the petitioner must demonstrate that the entire arrest is subject to expunction. The trial court’s judgment is reversed and judgment denying the expunction is rendered. IN RE EXPUNCTION, Houston’s 1st Court of Appeals, No. 01-14-00168-CV, 4/23/15.

01-14-00168-CV
Jane Bland

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

TELICIA OWENS, Appellant v. KRISTA G. HANDYSIDE, M.D., SAMUEL J. PRATER, M.D., KENNETH A. TOTZ, D.O., FACEP, AND MEMORIAL HERMANN HOSPITAL SYSTEM D/B/A MEMORIAL HERMANN TEXAS MEDICAL CENTER, Appellees

Without stating its reasons, the trial court granted the defendants’ motions to dismiss the plaintiff’s healthcare liability claims. Although a USPS certified mail receipt and green card show that the plaintiff used the wrong zip code in mailing the expert report to a defendant and he was not served with the expert report in person or by certified mail, the defendant and his attorney did in fact timely obtain a copy of the report "through alternative means." This satisfied Texas Civil Practice and Remedies Code §74.351. A report that is sufficient as to an employee, whose alleged negligent conduct a vicarious-liability claim is based, is also sufficient as to the employer health care provider. The trial court’s dismissal is reversed and remanded. OWENS v. HANDYSIDE, Houston’s 1st Court of Appeals, No. 01-12-01108-CV, 4/23/15.

01-12-01108-CV
Terry Jennings

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

IN RE LEA PERCY MCLAURIN, Relator

The relator challenges her confinement pursuant to an order holding her in contempt for failing to pay attorney's fees assessed as sanctions. Contempt judgments ordering imprisonment for disobeying a sanctions order to pay attorneys' fees or costs are void as an unconstitutional imprisonment for a debt. The petition for habeas corpus is granted. IN RE: MCLAURIN, Houston’s 1st Court of Appeals, No. 01-14-00920-CV, 4/30/15.

01-14-00920-CV
Michael Massengale

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

RAYMOND LEE CAVITT, Appellant v. THE STATE OF TEXAS, Appellee

A pre-trial delay of almost 18 months is long enough to be presumptively prejudicial, but there is no evidence that appellant asserted his right to a speedy trial before filing his writ of habeas corpus in August 2014, a full 16 months after his arrest and five weeks before trial. Appellant did not present any evidence of prejudice to his defense, and the record evidence about who was responsible for the trial delay is neutral. Appellant has not demonstrated that his right to a speedy trial was violated. Counsel’s divulging how long the appellant had been in jail — 542 days — did not violate his right to be presumed innocent or constitute ineffective assistance. The trial court’s judgment is affirmed. CAVITT v. STATE, Houston’s 1st Court of Appeals, No. 01-13-00900-CR, 4/23/15.

01-13-00900-CR
Sherry Radack

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

JOE E. HENDERSON, Appellant v. MARILYN KAY BLALOCK, Appellee

The trial court dismissed the appellant’s suit for want of prosecution after it had been pending for over three years with virtually no activity and the appellant failed to appear for trial. The statement that counsel "overlooked the trial setting" is not, by itself, sufficient to provide an adequate justification. Even if the trial court lacked jurisdiction over the defendant, that does not void the order of dismissal. The trial court’s judgment is affirmed. HENDERSON v. BLALOCK, Houston’s 14th Court of Appeals, No. 14-14-00429-CV, 4/23/15.

14-14-00429-CV
Marc W. Brown

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

IN THE MATTER OF R.A.

A juvenile court ordered a person who had been found to have committed aggravated sexual assault as a juvenile to privately register as a sex offender under Texas Code of Criminal Procedure article 62.352(b)(2). Even if the respondent unsuccessfully completed treatment, the state still may move for a hearing under article 62.352(c) and the juvenile court still may require registration under the statute. A seven-and-a-half month delay did not cause the juvenile court to lose jurisdiction to determine whether the respondent should be required to register as a sex offender. The juvenile court’s order is affirmed. IN THE MATTER OF R.A., Houston’s 14th Court of Appeals, No. 14-11-00570-CV, 4/30/15.

14-11-00570-CV
Kem Thompson Frost

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

GUGGENHEIM CORPORATE FUNDING, LLC, ORPHEUS HOLDINGS LLC, STELLAR FUNDING LTD., AND ORPHEUS FUNDING LLC, Appellants v. VALERUS COMPRESSION SERVICES, L.P., Appellee

The trial court rescinded an amended warrant agreement. The phrase “as of” is ambiguous, because it could be read as “on” a specific date, or to mean “beginning on” that date. A unilateral mistake will support equitable relief when a plaintiff shows: 1. the mistake is of so great a consequence that to enforce the contract as made would be unconscionable; 2. the mistake relates to a material feature of the contract; 3. the mistake must have been made regardless of the exercise of ordinary care; and 4. the parties can be placed in status quo in the equity sense. The trial court’s judgment is affirmed. GUGGENHEIM CORPORATE FUNDING LLC v. VALERUS COMPRESSION SERVICES L.P., Houston’s 14th Court of Appeals, No. 14-13-00809-CV, 4/23/15.

14-13-00809-CV
Sharon McCally

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

A. REAGAN CLARK, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF LOIS CLARK, DECEASED, Appellant v. CONOCOPHILLIPS COMPANY, DCP MAINSTREAM LP, CONOCOPHILLIPS GAS COMPANY, AND DCP MARKETING, LLC, Appellees

The trial court granted the appellee’s motion for summary judgment. The appellant argues that the limitations period was tolled because the appellant’s claims were part of a previously filed class-action suit alleging that the appellee had underpaid royalties. When a Texas court of appeals issues a judgment reversing a class certification order but has not yet issued its mandate, and the class representatives seek supreme court review, it is reasonable for unnamed plaintiffs to continue relying on their class representatives to protect their interests. The trial court’s judgment is reversed and remanded. CLARK v. CONOCOPHILLIPS CO., Houston’s 14th Court of Appeals, No. 14-14-00034-CV, 4/30/15.

14-14-00034-CV
J. Brett Busby

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

STEVEN ELLIOTT LOLLIE, Appellant v. THE STATE OF TEXAS, Appellee

The trial court denied the appellant’s motion to suppress evidence obtained as a result of the stop of his vehicle. A police officer stopped the appellant’s vehicle after he noticed that a tire was flat, and the vehicle was rocking back and forth as a result. To determine the reasonableness of the police officer's belief that an individual needs assistance, court considers the following nonexclusive factors: 1. the nature and level of the distress exhibited by the individual; 2. the location of the individual; 3. whether or not the individual was alone or had access to assistance other than that offered by the officer; and 4. to what extent the individual, if not assisted, presented a danger to himself or others. The officer’s stop of the appellant’s vehicle was proper under the community caretaking exception. The trial court’s judgment is affirmed. LOLLIE v. STATE, Houston’s 14th Court of Appeals, No. 14-14-00303-CR, 4/23/15.

14-14-00303-CR
Marc W. Brown

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

GERARD REGINALD LEASSEAR, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges the trial court’s decision to allow evidence of a robbery that occured eight days before the charged offense. Both the charged offense and the extraneous offense occurred within eight days of each other; both involved aggravated robberies; the perpetrator of each offense arrived at the scene in a similar model car; the steering column of each car was torn away, indicating that the car had been stolen; the perpetrator of each offense parked his car next to his victim's car; the perpetrator wielded a gun during each offense; witnesses to both crimes testified that the perpetrator wore a black hooded jacket or sweatshirt; the police found disposable cell phones inside abandoned vehicles connected to each crime; and the cell phones found in the vehicles connected to the crimes shared 19 contacts. The trial court’s judgment is affirmed. LEASSEAR v. STATE, Houston’s 14th Court of Appeals, No. 14-14-00016-CR, 4/23/15.

14-14-00016-CR
William J. Boyce

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

IN THE ESTATE OF ROSA ELVIA GUERRERO, DECEASED

The appellant, a car dealer, was named as a defendant in this suit that arose after an accident occurred that was allegedly the result of a failed tire. The trial court denied the appellant’s motion to compel arbitration. The trial court may summarily decide whether to compel arbitration on the basis of affidavits, pleadings, discovery, and stipulations if the material facts are not controverted. When the facts are disputed, the trial court should conduct an evidentiary hearing. The appellant did not request an evidentiary hearing and it does not complain on appeal that the trial court failed to hold one. The complete absence of authenticating evidence is a defect in substance that may be raised for the first time on appeal. The trial court’s order is affirmed. IN THE ESTATE OF ROSA ELVIA GUERRERO, Houston’s 14th Court of Appeals, No. 4-13-00580-CV, 4/23/15.

14-13-00580-CV
Ken Wise

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

LEROY STROMAN, Appellant v. ROBERT RUSSELL TAUTENHAHN, INDEPENDENT EXECUTOR OF THE ESTATE OF ROBERT L. WRIGHT, DECEASED, Appellee

The appellee nonsuited his claims in this dispute over real property. The trial court denied the appellant’s request for attorney’s fees. Texas Property Code §24.006(c) does not negate the tenant's obligation to request attorney's fees from the trial court. Because a request for attorney's fees is neither implied nor presumed under Texas Property Code §92.005, in the absence of an actual request for attorneys' fees, the fees will not be considered pending. The trial court’s judgment is affirmed. STROMAN v. TAUTENHAHN, Houston’s 14th Court of Appeals, No. 14-14-00280-CV, 4/28/15.

14-14-00280-CV
Kem Thompson Frost

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

STEWART AUTOMOTIVE RESEARCH, LLC, Appellant v. ERIK NOLTE, BRIAN KIRK, SIMON OGIER AND JOHN TOLLE, Appellees

The appellant sued former employees for various claims, including a challenge to the Texas Workforce Commission's determination that the appellant owed an employee unpaid wages. The court found that the appellant took a nonsuit in this case in order to avoid an unfavorable judgment and therefore awarded attorney’s fees to the appellees. Texas Labor Code §61.066(f) authorizes an award of attorneys' fees only in suits in Travis County district court that were either 1. filed by the TWC to enforce a final order or 2. filed against the TWC to challenge a notice of assessment. Parties may not recover attorneys' fees for suits brought under §61.062. The attorneys’ fees award is reversed and rendered. STEWART AUTOMOTIVE RESEARCH LLC v. NOLTE, Houston’s 14th Court of Appeals, No. 14-14-00199-CV, 4/23/15.

14-14-00199-CV
J. Brett Busby

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

IN THE INTEREST OF D.M.B. Jr. and I.L.B., Children

The appellant in this termination case challenges the trial court’s jurisdiction over him. By objecting to evidence at the Texas Family Code chapter 262 hearing, the appellant made a general appearance. The restricted appeal is dismissed for want of jurisdiction. IN THE INTEREST OF D.M.B., San Antonio Court of Appeals, No. 04-14-00767-CV, 4/29/15.

04-14-00767-CV
Marialyn Barnard

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

CITY OF SAN ANTONIO, Appellant v. Gerard CORTES, Appellee

This dispute began after a city issued a letter attempting to compel the plaintiff, a firefighter, to participate in a health plan ”dependent verification process.” The trial court denied the city’s motion to abate and to compel arbitration. Collateral estoppel bars successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment, even if the issue recurs in the context of a different claim. For purposes of collateral estoppel, the test for finality is whether the conclusion in question is procedurally definite. Union members are considered to be in privity with their union for purposes of collateral estoppel. The trial court’s judgment is reversed and rendered. SAN ANTONIO v. CORTES, San Antonio Court of Appeals, No. 04-14-00301-CV, 4/29/15.

04-14-00301-CV
Karen Angelini

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Andres Alfredo SEGOVIA, Appellant v. The STATE of Texas, Appellee

The appellant argues that the state's testimony regarding the appellant’s involvement in the Mexican Mafia violated the requirement that the state provide timely notice of its intent to offer extraneous bad acts evidence. The state possessed this information for almost two years and provided notice of extraneous offenses — but without the gang-affiliation information — more than 18 months prior to the trial. A Texas Code of Criminal Procedure article 37.07 violation of a notice requirement does not have an injurious effect on the verdict if the defendant was not surprised by the evidence. The appellant signed the paperwork upon which the state relied. The trial court could have reasonably determined that the appellant was not surprised. The trial court’s judgment is affirmed. SEGOVIA v. STATE, San Antonio Court of Appeals, No. 04-14-00367-CR, 4/29/15.

04-14-00367-CR
Patricia O. Alvarez

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

The STATE of Texas, Appellant v. Victor Manuel SCHUNIOR, Jr., Appellee

The state appeals the trial court's order dismissing its indictment against the appellee, alleging aggravated assault, as barred by a two-year statute of limitations. Texas Code of Criminal Procedure article 12.01(7)'s catch-all provision is subject to the more specific provisions of article 12.03(d), which results in a two-year statute of limitations for aggravated assault under the indictment in this case. The trial court’s order is affirmed. STATE v. SCHUNIOR, San Antonio Court of Appeals, No. 04-14-00347-CR, 4/22/15.

04-14-00347-CR
Rebeca C. Martinez

COURT OF APPEALS OF TEXAS, NINTH DISTRICT, BEAUMONT

IN RE COMMITMENT OF PAUL KEEN

The appellant was civilly committed as a sexually violent predator. The trial court denied his unauthorized petition for release. The trial court's order constitutes an appealable final judgment. The only evidence before the trial court that addressed the applicable standard for rejecting an unauthorized petition for release, that the petition is frivolous, was a report from the state's psychologist who concluded that the appellant does not presently suffer from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. The trial court’s judgment is reversed and remanded. IN RE COMMITMENT OF KEEN, Beaumont Court of Appeals, No. 09-14-00406-CV, 4/23/15.

09-14-00406-CV
STEVE McKEITHEN

COURT OF APPEALS OF TEXAS, NINTH DISTRICT, BEAUMONT

IN RE E.I. DU PONT DE NEMOURS AND COMPANY

The trial court disregarded the jury’s verdict in favor of the defendant and granted the plaintiff a new trial. The jury could have decided that the conditions on the defendant’s premises did not result in an exposure to asbestos that caused the decedent’s cancer. The jury could have given more weight to the witnesses who testified that the defendant maintained effective dust-control processes than to the witnesses who claimed that pipefitters worked in extremely dusty conditions. The jury could have rejected the opinion testimony of the plaintiff’s experts and believed that an original diagnosis of lung cancer due to smoking was correct. The petition for writ of mandamus is conditionally granted. IN RE E.I. DU PONT DE NEMOURS AND CO., Beaumont Court of Appeals, No. 09-14-00465-CV, 4/23/15.

09-14-00465-CV

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

GILBERT JUNIOR COLLINS A/K/A GILBERT JOUINOR COLLINS, APPELLANT v. THE STATE OF TEXAS, STATE

Police obtained warrants for the arrests of the appellant and another person, and police executed the warrants at the home of the other person’s mother. The mother let the police in, and after entering they kicked in a locked bedroom door to execute the warrants. The appellant was not entitled to a Texas Code of Criminal Procedure article 38.23 instruction regarding the mother’s authority or apparent authority. The trial court’s judgments are affirmed. COLLINS v. STATE, Fort Worth Court of Appeals, No. 02-14-00047-CR, 4/23/15.

02-14-00047-CR, NO. 02-14-00048-CR, NO. 02-14-00049-CR, NO. 02-14-00050-CR, NO. 02-14-00051-CR
LEE ANN DAUPHINOT

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

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

The appellant challenges the jury’s determination that he placed the complainant in fear of imminent death or serious bodily injury. The complainant said in her outcry and at trial that the appellant made various death threats to compel her participating silently in the sexual relationship. She understood these threats to be continuing threats of imminent harm at any time. Because the complainant was a child and not competent to consent to sexual conduct, the threat of force went only to the aggravating element that elevated the offense to a higher grade of felony and therefore a higher range of punishment. The record supports the jury’s determination. Rumors of false rape accusations were not admissible and were properly excluded. The trial court’s judgment is affirmed. SMALLWOOD v. STATE, Fort Worth Court of Appeals, 02-13-00532-CR.

02-13-00532-CR
LEE ANN DAUPHINOT

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

WHITNEY NICOLE CARTER, APPELLANT v. THE STATE OF TEXAS, APPELLEE.

The appellants challenge the warrantless search of data on two cell phones. An agent's testimony related to the risk of remote wiping did not suggest that troopers on this occasion were presented with a truly "now or never" situation. Texas Code of Criminal Procedure article 38.23 permits no exception for good-faith reliance on case law. It is impossible to say beyond a reasonable doubt that the cell phone evidence did not contribute to appellants' convictions. The trial court’s judgments of conviction are reversed and remanded. CARTER v. STATE, Amarillo Court of Appeals, No. 07-13-00207-CR, 4/27/15.

. 07-13-00207-CR, 07-13-00208-CR

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

TEDDIE DAVENPORT, APPELLANT v. THE STATE OF TEXAS, APPELLEE

The appellant contends that contends that a deadly weapon finding by the jury is erroneous because "intense light" does not qualify as a deadly weapon under Texas law. The definition of a deadly weapon, as contained in Texas Penal Code §1.07(a)(17)(B), means anything in the manner of its use or intended use that is capable of causing serious bodily injury or death is a deadly weapon. The trial court’s judgment is affirmed. DAVENPORT v. STATE, Amarillo Court of Appeals, No. 07-14-00278-CR, 4/27/15.

. 07-14-00278-CR, 07-14-00279-CR
Mackey K. Hancock

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

TOM NORMAN, APPELLANT v. ANN CROUCH AND OMNI CAPITAL CORPORATION D/B/A SOUTH GEORGIA SHOPPING CENTER, APPELLEES

The appellant challenges the award of damages to a lessor for past due rents. Because the debt reflected in this judgment was discharged in bankruptcy, it is wholly extinguished, and any errors found in the award of damages are of no legal consequence. The trial court’s judgment is affirmed. NORMAN v. CROUCH, Amarillo Court of Appeals, No. 07-14-00312-CV, 4/22/15.

07-14-00312-CV
Mackey K. Hancock

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

DUSTIN CHARLES WILMER, APPELLANT v. THE STATE OF TEXAS, APPELLEE

The appellant contends the evidence is insufficient to prove that he was previously convicted of two prior instances of DWI. Unlike Flowers, there is no testimony from an investigator that information on the records matched and that the exhibits referred to the same individual. However, a reasonable trier of fact would find that the appellant is linked to the prior convictions, based on exhibits including a clear photograph, and certified copies of documents linking the appellant to the convictions. The trial court’s judgment of conviction to is affirmed. A nunc pro tunc order is affirmed as modified to reflect the sentence as indicated on the original judgment and as confirmed by the trial court's oral pronouncement of punishment. WILMER v. STATE, Amarillo Court of Appeals, No. 07-14-00266-CR, 4/21/15.

07-14-00266-CR
Mackey K. Hancock

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

IN THE INTEREST OF Z.F. AND Z.F., CHILDREN

The trial court terminated the parental rights of the appellant to his children. The appellant’s court-appointed appellate counsel filed an Anders brief. After reviewing the entire record and counsel’s brief, the court of appeals concludes there are no non-frivolous issues for appeal. The motion is granted and the trial court’s judgment is affirmed. IN THE INTEREST OF Z.F. AND Z.F., Amarillo Court of Appeals, No. 07-14-00448-CV, 4/21/15.

07-14-00448-CV
James T. Campbell

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

CASEY DALE HAMMACK, Appellant v. THE STATE OF TEXAS, Appellee

The trial court revoked the appellant’s community supervision and adjudicated him guilty based on the decision by a a recovery community corrections facility to discharge the appellant from the program. The appellant asserts that the state alleged a violation of the prohibition of romantic relationships and only proved a "massage" and a "spanking." Either way, the appellant violated the rules prohibiting physical contact between peers, and there is no fatal variance. The trial court’s judgment is affirmed. HAMMACK v. STATE, Texarkana Court of Appeals, No. 06-14-00175-CR, 4/24/15.

06-14-00175-CR
Ralph K. Burgess

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

KENNETH CRAIG VICKERS, Appellant v. THE STATE OF TEXAS, Appellee

The appellant argues that Blount is inapplicable and that the indictment cannot provide the required deadly-weapon notice. The indictment charges him with burglary of a habitation with intent to commit aggravated assault and aggravated kidnapping. At his plea hearing, the trial court told the appellant that he was charged with "burglary of a habitation with intent to commit an aggravated assault." The appellant pleaded guilty to the charge pending against him, which was burglary of a habitation with intent to commit aggravated assault and aggravated kidnapping. Because the charge to which he pleaded guilty included both theories and because the first theory cannot be committed without either using a deadly weapon or causing serious bodily injury, then Blount applies and the appellant was on notice that the state would seek a deadly-weapon finding in this case. The trial court’s judgment is affirmed. VICKERS v. STATE, Texarkana Court of Appeals, No. 06-14-00072-CR, 4/27/15.

06-14-00072-CR
Ralph K. Burgess

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

TYRELL DARNELL SMITH, Appellant v. THE STATE OF TEXAS, Appellee

The appellant, convicted by a jury of alleged burglary of a building, argues that the trial court erred in refusing to submit criminal trespass as a lesser-included offense in the jury charge. The entry element of criminal trespass is not the functional equivalent of the entry element of burglary since the proof of entry required for criminal trespass is greater than the proof for burglary. Meru does not absolutely foreclose the possibility of criminal trespass being a lesser-included offense of burglary if the facts alleged in the indictment would allow the deduction that the entry element is satisfied, but no additional facts allowing that deduction were alleged. The trial court’s judgment is affirmed. SMITH v. STATE, Texarkana Court of Appeals, No. 06-14-00102-CR, 5/1/15.

06-14-00102-CR
Bailey C. Moseley

COURT OF APPEALS OF TEXAS, TENTH DISTRICT, WACO

IN THE MATTER OF W.E.J., A JUVENILE

The appellant challenges the trial court’s denial of his request for forensic interviews of two child victims to be transcribed and then translated from Spanish to English. Because Texas Code of Criminal Procedure article 39.15(c) requires the trial court to deny a request to duplicate or reproduce evidence depicting or describing sexual abuse against a child, and because the appellant's request amounted to an unauthorized duplication of the interviews, the trial court did not abuse its discretion. The trial court’s judgment is affirmed. IN THE MATTER OF W.E.J., Waco Court of Appeals, No. 10-14-00243-CV, 4/23/15.

10-14-00243-CV
AL SCOGGINS

COURT OF APPEALS OF TEXAS, TENTH DISTRICT, WACO

VERONICA NANCARROW, Appellant v. WADE W. WHITMER, M.D., Appellee

The appellant contends contends that the trial court erred in entering final summary judgment because it was based on a Rule 11 agreement regarding settlement that was allegedly fraudulently induced and thus vitiated. The appellant alleges that she would not have settled but for a disclosure that claimed — allegedly falsely — that a doctor would be testifying in favor of the appellee. Counsel's signature on the disclosure responses was some evidence that the responses to the requests for disclosure were either known to be false when made or made without knowledge of their truth. Predictions about the future that are made with present knowledge that the statements are false are actionable misrepresentations. The trial court’s summary judgment is reversed and remanded. NANCARROW v. WHITMER, Waco Court of Appeals, No. 10-13-00369-CV, 4/30/15.

10-13-00369-CV
REX D. DAVIS

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

Greg Abbott, in his Official Capacity as Governor of the State of Texas; Kyle Janek, in his Official Capacity as Executive Commissioner of the Texas Health and Human Services Commission; Jon Weizenbaum, in his Official Capacity as Commissioner of the Texas Department of Aging and Disability Services; Laura Cazabon-Braly, in her Official Capacity as Director of the Austin State Supported L [...] v. G.G.E, E.M.B, and G.D.E. through their next friend, Geoffrey Courtney; and Disability Rights Texas, Appellees

The appellees sued several state parties on claims related to the civil commitment and confinement of persons in state supported living centers. Although an order of commitment is not an adjudication of mental incompetence, all that is necessary to be represented by a next friend is that the party merely be incapable, by reason of mental or bodily infirmity, of properly caring for his or her own interests in the litigation. The declaratory relief sought is sufficient to satisfy the redressability requirements of standing. A declaratory judgment is a proper remedy for determining the individual plaintiffs' rights under the Persons with Mental Retardation Act. The plaintiffs’ claim is not an administrative rule challenge governed exclusively by the APA. The trial court’s denial of the plea to the jurisdiction is affirmed. Abbott v. G.G.E, Austin Court of Appeals, No. 03-11-00338-CV, 4/30/15.

03-11-00338-CV
Melissa Goodwin

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

Appellant, Paul DeNucci, Individually, and in his Derivative Capacity on behalf of eStrategy Solutions, Inc.//Cross-Appellants, John Matthews, Steve Matt and eStrategy Solutions, Inc. v. Appellees, John Matthews, Steve Matt and eStrategy Solutions, Inc.//Cross-Appellee, Paul DeNucci, Individually, and in his Derivative Capacity on behalf of eStrategy Solutions, Inc.

A minority shareholder in a closely held corporation alleged that the majority shareholder, president, and treasurer of the corporation, breached his fiduciary duties and committed fraud by funding distributions by incurring unauthorized loans and failing to pay vendors. At trial, the majority shareholder asserted that the minority shareholder had impliedly ratified the distributions by retaining his portion of the distribution. The majority shareholder neither pleaded nor proved a contribution claim against the minority shareholder, and there was no evidence at trial that the minority shareholder accepted or received the distributions knowing they would render the corporation insolvent. Ratification or retention of wrongful distributions by a shareholder is not an affirmative defense to a director's liability. The trial court’s judgment is affirmed in part, and reversed and remanded in part. DeNucci v. Matthews, Austin Court of Appeals, No. 03-11-00680-CV, 4/23/15.

03-11-00680-CV
Scott K. Field

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

RONALD BLAKE FEARS, Appellant, v. THE STATE OF TEXAS, Appellee.

The appellant challenges his convictions including alleged sexual abuse of a child. When considering whether to disclose CPS records that the appellant argues are Brady materials, the trial court correctly conducted a Texas Family Code section 261.201(b)(3) balancing test. The trial court’s judgment is affirmed. FEARS v. STATE, Corpus Christi Court of Appeals, No. 13-13-00111-CR, 4/23/15.

NUMBER 13-13-00111-CR
NORA L. LONGORIA

COURT OF APPEALS OF TEXAS, TWELFTH DISTRICT, TYLER

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

The appellants challenge a judgment based on the alleged failure to provide the annual statements required by Texas Property Code Section 5.077. Texas Property Code §5.077 is subject to Chapter 41. A claimant must prove more than nominal damages as a predicate to recovery of liquidated damages under Section 5.077. The failure to plead and prove an offset waives any entitlement to it. The trial court’s judgment is reversed and rendered in part, affirmed in part, and remanded for recalculation of prejudgment interest. SMITH v. DAVIS, Tyler Court of Appeals, 12-14-00007-CV, 4/22/15.

12-14-00007-CV
JAMES T. WORTHEN

COURT OF APPEALS OF TEXAS, TWELFTH DISTRICT, TYLER

WILBERT WALKER, APPELLANT v. THE STATE OF TEXAS, APPELLEE

The appellant contends that the trial court erred by refusing to quash the jury panel after a potential juror made a remark relating to the appellant being incarcerated in the past. When a potential juror makes a possibly prejudicial statement in front of the entire panel, the appellant must show harm by demonstrating that 1. other members of the panel heard the remark, 2. potential jurors who heard the remark were influenced to the prejudice of the appellant, and 3. the juror in question or some other juror who may have had a similar opinion was forced upon the appellant. Because the appellant failed to show harm, the trial court did not abuse its discretion. The trial court’s judgment is affirmed. WALKER v. STATE, Tyler Court of Appeals, No. 12-13-00333-CR, 4/30/15.

12-13-00333-CR
GREG NEELEY

COURT OF CRIMINAL APPEALS OF TEXAS

EX PARTE ROBERT LYNN PRUETT, Applicant

In this third subsequent habeas application, the applicant asserts that he is entitled to relief under Texas Code of Criminal Procedure article 11.073. He argues the jury would not have convicted him had a 2009 National Academy of Sciences report been available that could have discredited testimony regarding tape comparisons. Because the applicant failed to satisfy the requirements of Article 11.071 § 5 and Article 11.073(c), the application is denied. EX PARTE PRUETT, Court of Criminal Appeals, No. WR-62,099-05, 4/24/15.

WR-62,099-05

COURT OF CRIMINAL APPEALS OF TEXAS

THE STATE OF TEXAS v. CUONG PHU LE, Appellee

After disregarding an illegal dog sniff and police observations that the court determined were stale, the court of appeals held that the remaining facts in the affidavit did not clearly establish probable cause that marijuana would be found at the suspected place. The claim of staleness is defeated by allegations pointing to the manufacture of drugs, as opposed to mere possession. This evidence, in combination with other facts, demonstrates probable cause. The court of appeals’ judgment is reversed, and the case is remanded to the trial court. STATE v. LE, Court of Criminal Appeals, No. PD-0605-14, 4/29/15.

PD-0605-14
NEWELL

COURT OF CRIMINAL APPEALS OF TEXAS

BILLY DEAN BUTLER, Appellant v. THE STATE OF TEXAS, Appellee

The state introduced text messages through the alleged kidnapping victim, who testified that she recognized the appellant's phone number displayed on the text messages, that the text messages were from appellant, and that appellant called her from that phone number at some point during the course of their text messaging back and forth. Nothing in Texas Rule of Evidence 901 suggests that a witness whose credibility has been questioned in some way is precluded by that fact from sponsoring evidence as a "witness with knowledge." The trial court's decision to admit the content of the text messages and leave the ultimate question of authenticity to the jury was well within the zone of reasonable disagreement. The court of appeals’ judgment is reversed and remanded. BUTLER v. STATE, Court of Criminal Appeals, No. PD-0456-14, 4/22/15.

PD-0456-14
YEARY

COURT OF CRIMINAL APPEALS OF TEXAS

ROBERT BRADLEY EHRKE, Appellant v. THE STATE OF TEXAS

A jury convicted the appellant of alleged possession of more than one gram but less than four grams of methamphetamine in a drug-free zone. The trial court erred in holding that appellant was required to meet a minimum threshold showing in order to be permitted to have an independent expert analyze the alleged methamphetamine. If a defendant in a controlled-substance case asks to inspect the alleged controlled substance, the court must permit inspection, even without a showing of good cause, because the substance is material to the defense of the accused. An indigent defendant does not have an absolute right to state-funded independent chemical analysis — there must be some preliminary showing of a significant issue of fact to require the court to appoint an expert. The court of appeals’ judgment is reversed and the case is remanded to the trial court. EHRKE v. STATE, Court of Criminal Appeals, No. PD-0071-14, 4/22/15.

PD-0071-14
JOHNSON

COURT OF CRIMINAL APPEALS OF TEXAS

RYLAND SHANE ABSALON, Appellant v. THE STATE OF TEXAS

During the appellant's trial, several people who had participated in substance-abuse treatment with him were permitted to testify that he had confessed to them. The court of appeals affirmed the trial court’s decision to deny a motion to suppress. The appellant's participation in the substance-abuse program, although bargained for as part of a plea agreement, was not voluntary for the purposes of Texas Rule of Evidence 509(b) and Texas Code of Criminal Procedure article 38.101. Therefore, it was not error for the trial court to admit the testimony of other participants in the program. The court of appeals’ judgment is affirmed. ABSALON v. STATE, Court of Criminal Appeals, No. PD-0340-14, 4/29/15.

PD-0340-14
MEYERS

SUPREME COURT OF TEXAS

IN RE STEVEN LIPSKY, RELATOR

Pursuant to the Texas Citizens Participation Act, the trial court is directed to dismiss the suit unless "clear and specific evidence" establishes the plaintiffs' prima facie case. Here, the court of appeals considered circumstantial evidence. Though the TCPA initially demands more information about the underlying claim, the Act does not impose an elevated evidentiary standard or categorically reject circumstantial evidence. It does not impose a higher burden of proof than that required of the plaintiff at trial. The petitions are denied. IN RE STEVEN LIPSKY, Texas Supreme Court, No. 13-0928, 4/24/15.

13-0928
John P. Devine

SUPREME COURT OF TEXAS

MELISSA VAN NESS, INDIVIDUALLY AND AS NEXT FRIEND, AN HEIR AT LAW, AND A SURVIVING PARENT OF NICHOLAS VAN NESS, RONALD VAN NESS, INDIVIDUALLY AND AS NEXT FRIEND, AN HEIR AT LAW, AND A SURVIVING PARENT OF NICHOLAS VAN NESS, AND ESTATE OF NICHOLAS VAN NESS, PETITIONERS, v. ETMC FIRST PHYSICIANS & KRISTIN AULT, D.O., RESPONDENTS

The trial court denied the defendants' motion to dismiss this health care liability claim, in light of allegedly conflicting statements in the plaintiffs' expert report. The court of appeals reversed. Although the expert report states that early treatment with antibiotics would have had little effect, the report sets out that treatment with antibiotics at the time of a later visit probably would have prevented death. The trial court has a duty to review the report, sort out its contents, resolve any inconsistencies in it, and decide whether the report demonstrated a good faith effort to show that the claims have merit. The court of appeals’ judgment is reversed and remanded to the trial court. VAN NESS v. ETMC FIRST PHYSICIANS, Texas Supreme Court, No. 14-0353, 4/24/15.

14-0353

SUPREME COURT OF TEXAS

RANDOL MILL PHARMACY, KVG ENTERPRISES, INC., GARY G. DALEY, JOHN WAYNE BAILEY, JAMES ROBERT FORSYTHE, KEVIN LYNN HEIDE, JULIE KNOWLTON LUBBERT, AND CARA MORRELL, PETITIONERS, v. STACEY MILLER AND RANDY MILLER, RESPONDENTS

The trial court denied the defendants’ motion to dismiss for failure to file an expert report, and the court of appeals affirmed. A pharmacist who compounds a drug for office use pursuant to a practitioner's lawful order, as authorized by the Pharmacy Act, is "dispensing" the drug whether or not the order identifies the patients to whom the drug will be administered. The injectable lipoic acid compounded by the defendant was a prescription medicine under the Medical Liability Act. Texas Civil Practice and Remedies Code §74.001(22) does not apply to a pharmacy being sued for compounding. The court of appeals’ judgment is reversed and remanded. RANDOL MILL PHARMACY v. MILLER

13-1014
Debra H. Lehrmann

SUPREME COURT OF TEXAS

IN RE BRIDGESTONE AMERICAS TIRE OPERATIONS, LLC, RELATOR

A Texas resident filed suit as “next friend” of two children residing in Mexico. The suit arose from an accident in Mexico that killed the children’s parents. The court of appeals denied a writ of mandamus requested by the defendant, who argues that the case should be dismissed on forum-non-conveniens grounds. If a legal guardian has been appointed or recognized in another jurisdiction, but that guardian lacks authority to sue on the minor's behalf in Texas and has no legal basis for obtaining such authority, the minor may sue by next friend under Texas Rule of Civil Procedure 44. A next friend's legal residency in Texas does not trigger the forum-non-conveniens statute's Texas-resident exception. The writ of mandamus is conditionally granted. IN RE: BRIDGESTONE AMERICAS TIRE OPERATIONS LLC, Texas Supreme Court, No. 12-0946, 4/24/15.

12-0946
Debra H. Lehrmann

SUPREME COURT OF TEXAS

VERNCO CONSTRUCTION, INC., PETITIONER, v. DAVID NELSON, INDIVIDUALLY AND D/B/A COLLECTIVE CONTRACTING, A SOLE PROPRIETORSHIP; AND E.E. HOOD & SONS, INC., RESPONDENTS

The petitioner obtained a multi-million dollar judgment that was reversed by the court of appeals. That court, finding that the petitioner had assigned its claims to a bank in a forbearance agreement, decided that the petitioner lacked standing. The court of appeals refused to consider an addendum to the agreement as part of the standing analysis because it had not been included in an offer of proof during the trial on the merits. The addendum was before the pretrial judge when he determined the standing issue, and therefore should have been considered by the court of appeals. The record suggests that the hearing was evidentiary. The court of appeals’ judgment is reversed and remanded. VERNCO CONSTRUCTION INC. v. NELSON, Texas Supreme Court, No. 13-0750, 4/24/15.

13-0750

SUPREME COURT OF TEXAS

MATTHEW LIPPINCOTT AND CREG PARKS, PETITIONERS, v. WARREN WHISENHUNT, RESPONDENT

The respondent sued the petitioners alleging that the petitioners made disparaging comments in several emails. The court of appeals held that the Texas Citizens Participation Act did not apply to private communications. The plain language of the TCPA merely limits its scope to communications involving a public subject — not communications in public form. The provision of medical services by a health care professional constitutes a matter of public concern. The court of appeals’ judgment is reversed and remanded. LIPPINCOTT v. WHISENHUNT, Texas Supreme Court, No. 13-0926, 4/24/15.

13-0926

SUPREME COURT OF TEXAS

SAN ANTONIO WATER SYSTEM, PETITIONER, v. DEBRA NICHOLAS, RESPONDENT

The respondent contends she was terminated by the petitioner because she confronted a male vice president about his repeated lunch invitations to two female employees outside his department. To establish an employee opposed a discriminatory practice, the employee must demonstrate a good-faith, reasonable belief that the underlying discriminatory practice violated the Texas Commission on Human Rights Act. Regardless of the respondent’s subjective belief, no reasonable person would believe that a handful of lunch invitations amounted to sexual harassment actionable under the TCHRA. The court of appeals’ judgment is reversed and a judgment of dismissal is rendered. SAN ANTONIO WATER SYSTEM v. NICHOLAS, Texas Supreme Court, No. 13-0966, 4/24/15.

13-0966
Jeffrey V. Brown

SUPREME COURT OF TEXAS

TEXAS STUDENT HOUSING AUTHORITY, PETITIONER, v. BRAZOS COUNTY APPRAISAL DISTRICT AND APPRAISAL REVIEW BOARD FOR BRAZOS COUNTY APPRAISAL DISTRICT, RESPONDENTS

The court of appeals denied tax-exempt status to a higher education facility authority, finding that the authority forfeits its statutory property-tax exemption by providing summer housing to non-college students attending university-sponsored instructional programs. Texas Education Code §53.46 unequivocally exempts property owned by a properly constituted higher education facility authority. Because the appraisal district does not dispute the petitioner’s assertion that it is such an authority, the property is exempt from taxation. The court of appeals’ judgment is reversed and rendered. TEXAS STUDENT HOUSING AUTHORITY v. BRAZOS COUNTY APPRAISAL DISTRICT, Texas Supreme Court, No. 13-0593, 4/24/15.

13-0593
Don R. Willett

SUPREME COURT OF TEXAS

WILLIAM MARSH RICE UNIVERSITY AND GARY SPEARS, PETITIONERS, v. RASHEED REFAEY, RESPONDENT

The plaintiff sued a peace officer and a university alleging causes of action including false imprisonment. The court of appeals dismissed the appeal and held that it lacked jurisdiction because the officer was not an "officer or employee of the state.” The "officer . . . of the state" language in Texas Education Code §51.014(a)(5) applies to private university peace officers. The court of appeals had jurisdiction under §51.014(a)(5) to consider the appeals of both the officer and the university. The court of appeals’ judgment is reversed and remanded. RICE UNIVERSITY v. REFAEY, Texas Supreme Court, No. 14-0048, 4/24/15.

14-0048

SUPREME COURT OF TEXAS

STATE OF TEXAS, PETITIONER, v. CLEAR CHANNEL OUTDOOR, INC., RESPONDENT

The state condemned adjacent parcels of land, necessitating the destruction and removal of two billboards. A jury found that the fair market value of the two billboards was $268,235, and the trial court rendered judgment on that amount less credits for amounts the owner had already received. The court of appeals affirmed. A billboard may be a fixture to be valued with the land, and while the advertising business income generated by a billboard should be reflected in the valuation of the land at its highest and best use, the loss of the business is not compensable and cannot be used to determine the value of the billboard structure. The court of appeals’ judgment is reversed and remanded. STATE OF TEXAS v. CLEAR CHANNEL OUTDOOR INC., Texas Supreme Court, No. 13-0053, 4/24/15.

13-0053
Nathan L. Hecht

SUPREME COURT OF TEXAS

JAW THE POINTE, L.L.C., PETITIONER, v. LEXINGTON INSURANCE COMPANY, RESPONDENT

The court of appeals concluded that an insurance policy does not cover the insured’s ordinance-compliance costs because the property damage that caused the ordinances resulted at least in part from flooding, which is an excluded cause of loss. Read together, the anti-concurrent-causation clause and the exclusion for losses caused by flood exclude from coverage any damage caused by a combination of wind and water. The evidence conclusively establishes that a hurricane caused both wind damage and flood damage in a sequence of events which combined to cause the city to enforce the ordinances. The policy's anti-concurrent-causation clause excluded coverage for the losses, and the insured therefore cannot recover against the insurer on its alleged statutory bad faith claims. The court of appeals’ judgment is affirmed. JAW THE POINTE L.L.C. v. LEXINGTON INSURANCE CO., Texas Supreme Court, No. 13-0711, 4/24/15.

13-0711
Jeffrey S. Boyd

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

In the Matter of: AMERICAN HOUSING FOUNDATION, Debtor;

The appellant invested in certain limited partnerships formed under the auspices of the debtor, a developer of low-income housing projects. The debtor was the operator of the LPs despite the fact that it was not a formal party to the LP agreements. The bankruptcy court subordinated the appellant's claims, finding, in part, that the guaranties do not actually provide that the debtor guaranteed the investments, and the investments -- which the court had deemed equity investments -- constitute "securities" under the Bankruptcy Code, therefore the appellant's unliquidated claims (based on alleged fraud and related theories) fell within the requirements of §510(b). Because each of the appellant's claims is a claim for damages arising from the purchase of securities of the debtor's affiliates, §510(b) mandates the subordination of those claims. The subordination is affirmed, the court's rulings on the alleged preferential and alleged fraudulent transfers is reversed and remanded for a finding on whether the appellant gave value in exchange for the transfers and whether he did so in good faith. 5th U.S. Circuit Court of Appeals, No. 14-10563, 4/28/15.

14-10563
KING

Practice Areas: Bankruptcy

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

In re: AMERIJET INTERNATIONAL, INCORPORATED, Petitioner;

The plaintiff appeals the district court's anti-suit injunction and petitions for a writ of mandamus setting aside the district court's order reopening this case after the parties purportedly settled their dispute. A pre-removal answer meeting the requirements of state law suffices to preclude voluntary dismissal under Federal Rule of Civil Procedure 41(a)(1)(A)(i). The district court's injunction is affirmed and the petition for writ of mandamus is denied. 5th U.S. Circuit Court of Appeals, No. 14-20521, 5/1/15.

14-20521 Consolidated With 14-20522

Practice Areas: Appellate Law - Civil

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

STACY BARZELIS, Individually and as Representative of the Estate of Nicholas Barzelis, Deceased, PlaintiffAppellant v. FLAGSTAR BANK, F.S.B.; UNKNOWN PARTIES, DefendantsAppellees

The district court dismissed all of the appellant's state law claims, relating to attempted foreclosure, as preempted by the Home Owners' Loan Act of 1933. Although Texas Property Code §51.002(d) is preempted, this does not implicate the breach-of-contract claims based on the parties' voluntary agreement. The claim of common-law negligent misrepresentation based on alleged misstatements in disclosures contained in credit-related documents is preempted under 12 CFR §560.2(b)(9). The Texas Debt Collection Act is a generally applicable law against deceptive trade practices, governing behavior at the margins of banking and lending, and is not preempted by HOLA. Because the district court did not consider the legal implications of Texas' community-property system and estate laws as they relate to the appellant's borrower status, summary judgment on the Real Estate Settlement Procedures Act of 1974 claim is reversed. The district court's judgment is affirmed in part, reversed in part, and remanded. 5th U.S. Circuit Court of Appeals, No. 14-10782, 4/22/15.

14-10782
JERRY E. SMITH

Practice Areas: Banking and Financial Institutions