Decisions

Recent Decisions

Tex. App. Dist. 7

In re Crawford & Co.

The petitioners request a writ of mandamus ordering the trial judge to dismiss the plaintiff's claims because of the alleged failure to exhaust administrative remedies. The plaintiffs certified that they had exhausted their administrative remedies available before the Division of Worker's Compensation; the resolution of the question of exhaustion is not within the province of a mandamus proceeding. The plaintiff's malicious prosecution claim, though it may have some attenuated relationship to a workers' compensation claim, is not subsumed into the worker's compensation administrative scheme. Therefore, at least one cause of action continues to exist. The petition for writ of mandamus is denied. Amarillo Court of Appeals, No. 07-14-00013-CV, 03-17-2014

Practice Areas: Labor and Employment

Tex. App. Dist. 8

In re J.T.M.

A juvenile appeals a pretrial suppression ruling in this case alleging possession of less than two ounces of marijuana. It was error to admit a statement made after the juvenile's formal arrest but before he was admonished. Constitutional error in juvenile cases should be analyzed for harm under Texas Rule of Appellate Procedure 44.2(a)'s standard because it is more protective of the juvenile's rights than Rule 44.1(a) as it examines the impact of the error on the integrity of the process leading to the juvenile's plea of true. The error was harmless because the juvenile's admission that he had additional marijuana in his vehicle did not contribute to the state's leverage in the plea bargaining process. The juvenile court's judgment is affirmed. El Paso Court of Appeals, No. 08-12-00102-CV, 03-12-2014

Practice Areas: Criminal Law

Tex. App. Dist. 6

In re Freestone Underground Storage, Inc.

The relator petitions for writ of mandamus ordering the trial judge to transfer this suit to a district court having jurisdiction over Freestone County. The suit concerns a lease agreement that, among other things, granted the lessee the right to use a saltwater disposal well and underground salt caverns. If the lease in this case is a mineral lease, the dispute concerns whether the fee simple reverted to the lessor and venue in Freestone County is mandatory under Texas Civil Practice and Remedies Code §15.011. If this lease is not a mineral lease, this is a dispute over the terms of a lease between a landlord and a tenant, and venue was mandatory in Freestone County as prescribed in §15.0115. The writ of mandamus is conditionally granted. Texarkana Court of Appeals, No. 06-14-00012-CV, 03-14-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 7

Ludwig v. State

The appellant challenges his conviction and sentence for alleged aggravated assault with a deadly weapon. The appellant asserts that the state, through an investigator, instructed a witness not to mention that she heard laughing during a telephone conversation. The appellant had consistent communication with the witness from the time of the incident through the trial. The state did not know whether the laughing on the line was male or female or whether it existed at all. Trial counsel had the opportunity to visit with the witness before trial. The appellant failed to demonstrate a Brady violation. The trial court's judgment is affirmed. Amarillo Court of Appeals, No. 07-13-00049-CR, 03-18-2014

Practice Areas: Criminal Law

Tex. App. Dist. 8

In re Group 1 Realty, Inc.

The relator seeks a writ of mandamus directing the respondent to reverse his order denying a motion to transfer venue. The issue concerns two mandatory venue provisions found in a purchase agreement and a related sublease. The clause contained in the purchase agreement is valid and enforceable under Texas Civil Practice and Remedies Code §15.020. The essence of the dispute is whether the relators are entitled to reduce the purchase price of the property by the cost of the improvements it made. Although the requested declarations by the real party in interest concerns both the sublease and the purchase agreement, the majority of those concerning the sublease are clearly designed to establish the real party's defense against the enforcement of the purchase agreement. The object of a proposed declaration is the purchase agreement. The writ of mandamus is conditionally granted. El Paso Court of Appeals, No. 08-13-00192-CV, 03-12-2014

Practice Areas: Appellate Law - Civil

Tex.Crim.App.

Ex parte Maxwell, AP-76

The applicant claims that his mandatory sentence of life imprisonment without the possibility of parole, for a crime he committed as a juvenile, violates the Eighth and Fourteenth Amendments to the United States Constitution under Miller v. Alabama. In that case, the U.S. Supreme Court held that a mandatory "life without parole" sentence for a defendant who was under the age of 18 at the time of his crime violates the Eighth Amendment's prohibition on cruel and unusual punishment. The Miller court announced a new substantive rule that applies retroactively. Relief is granted, and the case is remanded for further sentencing proceedings. Court of Criminal Appeals, No. AP-76, 964, 03-12-2014

Practice Areas: Criminal Law

5th Cir.

Naquin v. Elevating Boats, L.L.C.

The plaintiff, a ship repairman, was severely injured at a shipyard. A jury awarded Jones Act damages. The evidence supports the finding that the plaintiff is a seaman; the plaintiff contributes to the function of a discrete fleet of vessels and has a connection with the fleet that is substantial in terms of both duration and nature. The evidence that the defendant was responsible for a defective weld, though circumstantial, is sufficient to support the finding of negligence even though the plaintiff did not plead res ipsa loquitor. A new trial on damages is required, because the court erroneously admitted evidence of an injury to a third party to support the plaintiff's claim for emotional damages. The judgment as to liability is affirmed, the judgment as to damages is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 12-31258, 03-10-2014

Practice Areas: Admiralty

5th Cir.

NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C.

The district court determined that a Texas law firm's speech fell within the commercial speech exemption to the Texas Citizen's Participation Act. The firm advertised to solicit former patients of the appellee, a national chain of dental clinics. The district court's order denying TCPA relief is conclusive for purposes of the collateral order doctrine. The denial of a TCPA motion to dismiss satisfies the collateral order doctrine's separability requirement and would be effectively unreviewable on appeal from a final judgment. The Texas Supreme Court would most likely hold that the firm's ads and other client solicitation are exempted from the TCPA's protection because the firm's speech arose from the sale of services where the intended audience was an actual or potential customer. The district court's order is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-41243, 03-11-2014

Practice Areas: Torts

Tex.Crim.App.

In re Bonilla, WR-76

Relying on Texas Government Code §552.028, the district court declined to provide any information to the relator about the amount it would cost to purchase a trial and appellate transcript. When the information sought by an imprisoned individual relates only to the amount that it would cost to obtain trial and appellate transcripts for use in preparing an application for a writ of habeas corpus, application of §552.028 to deny the prisoner access to that information unconstitutionally infringes on his federal constitutional right to have access to the courts. However, while the case was under abatement, the district clerk provided the information to the relator, rendering the request for relief moot. Court of Criminal Appeals, No. WR-76, 736-02, 03-12-2014

Practice Areas: Criminal Law

Tex.Crim.App.

Ex parte Cockrell, WR-78

In this application for a post-conviction writ of habeas corpus, applicant contends that his trial counsel rendered constitutionally ineffective assistance by failing to seek accommodations for his deafness. By failing to assert applicant's rights to an interpreter to ensure that he could understand the testifying witnesses and participate in his own defense during a substantial portion of the trial, the result of this proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results. The applicant has demonstrated that counsel's performance was constitutionally deficient and that he was prejudiced as a result of counsel's errors. Relief is granted and the case is remanded for a new trial. Court of Criminal Appeals, No. WR-78, 986-01, 03-12-2014

Practice Areas: Criminal Law

5th Cir.

Harris v. Serpas

The district court granted summary judgment for police officers in this suit alleging excessive force. Police were called by a woman who suspected her husband had taken an overdose. During the encounter, the police shot the husband. Any of the officers' actions leading up to the shooting are not relevant for the purposes of an excessive force inquiry. When looking at the moment of the threat that resulted in the officer's use of deadly force, it is clear from a taser video that the man was standing up out of bed and had raised a knife above his head at the time the shots were fired. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-30337, 03-12-2014

Practice Areas: Civil Rights

5th Cir.

Coleman v. Sweetin

The plaintiff, an inmate, appeals the dismissal of his suit alleging damages as a result of an allegedly unsafe shower floor. The existence of slippery conditions in any populous environment represents at most ordinary negligence rather than a condition so threatening as to implicate constitutional standards. The appellant's allegations of extreme pain are sufficient to raise the possibility of a nurse practitioner's deliberate indifference to the inmate's serious medical needs. The lower court's dismissal of the suit against a party because the appellant failed to provide a current address to effectuate service was not proper, because the record is devoid of delay or contumacious conduct. The judgment is affirmed in part, and reversed and remanded in part. 5th U.S. Circuit Court of Appeals, No. 12-40012, 03-12-2014

Practice Areas: Criminal Law

5th Cir.

United States v. Foulks

The appellant pleaded guilty to alleged conspiracy to distribute and to possess with the intent to distribute methamphetamine. Distribution (or possession with intent to distribute) of imported methamphetamine, even without more, may subject a defendant to the U.S. Sentencing Guidelines §2D1.1(b)(5) enhancement. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-10399, 03-11-2014

Practice Areas: Criminal Law

5th Cir.

Taylor v. Bailey Tool & Manufacturing Co.

The appellant appeals the district court's order dismissing his claims as barred by the applicable statutes of limitations. Where a claim filed in state court was barred at the time of its filing, Federal Rule of Civil Procedure 15(c) does not revive the case once the case is removed. The district court's order is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-10715, 03-10-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 1

Certain Underwriters At Lloyd's of London Subscribing to Policy Number FINFR0901509 v. Cardtronics, Inc.

Insurance underwriters appeal the trial court's determination that the insured suffered a covered loss under the policy that had to be paid without the insured first exhausting its claims against responsible third parties. The policy does not explicitly require the insured to exhaust its remedies against third parties before bringing suit against the underwriters. On the contrary, it requires the insured to bring only one suit: suit against the underwriters must be "brought within 2 years from the date [the insured] discover[ed] the loss." The policy is silent as to a deadline for when the insured must demonstrate what it "cannot recover" before payment from the underwriters is triggered. "Cannot recover" applies at the time of the proof of loss, which gives meaning to all provisions of the policy and therefore is not unreasonable. The grant of partial summary judgment is affirmed and the case is remanded. Houston's 1st Court of Appeals, No. 01-13-00165-CV, 03-11-2014

Practice Areas: Insurance Law

Tex. App. Dist. 1

Perez v. State

The appellant argues, inter alia, that the warrantless taking of a blood sample violated the Fourth Amendment. The copy of appellant's criminal history from the dispatcher provided the officer with reliable information from a credible source that appellant had at least two previous alleged DWI convictions. This is evidence of implied consent. The appellant waived his argument that Texas Transportation Code §724.012(b) is unconstitutional, because his only argument in the trial court was that the taking of his blood violated his Fourth Amendment rights by requiring him to submit to a warrantless blood test without consent. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-12-01001-CR, 03-11-2014

Practice Areas: Criminal Law

Tex. App. Dist. 1

Goody v. State

This is an en banc rehearing. The appellant challenges the trial court's denial of his motion for new hearing, contending that he received ineffective assistance of counsel. The appellant's trial counsel had been indicted for alleged barratry. The charge of barratry does not share a common factual basis with the appellant's alleged crimes such that a vigorous defense would expose the trial counsel's alleged misdeeds. The pending barratry charge did not render the trial counsel incompetent as a matter of law. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, Nos. 01-12-01138-CR, 01-12-01139-CR, 01-12-01140-CR, 01-12-01141-CR, 03-11-2014

Practice Areas: Criminal Law

Tex. App. Dist. 1

In re Miller

Relator filed a writ of prohibition asking that the trial court be enjoined from ruling upon a request to cancel a lis pendens filed on a tract of commercial property. This proceeding is ancillary to a common-law marriage determination. The writ of prohibition is available to protect the subject matter of an appeal or to prohibit unlawful interference with enforcement of an appellate court's judgment. Prohibition is not appropriate relief when other remedies, like an appeal, are available and adequate. The petition is denied. Houston's 1st Court of Appeals, No. 01-13-00973-CV, 03-11-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 4

Pace v. Whatley

After closure of the appellant's bankruptcy case, plaintiffs continued a state court action against the appellant on a promissory note. Filing a claim seeking to have the bankruptcy court refuse to discharge debts under the Bankruptcy Code is not the same as a claim seeking to collect on an outstanding promissory note. The promissory note claim was not precluded by the bankruptcy court's inclusion of a "Mother Hubbard" clause in its order denying the discharge of the appellant's debts. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-13-00136-CV, 03-12-2014

Practice Areas: Bankruptcy

Tex. App. Dist. 4

Vega v. Compass Bank

The trial court rendered summary judgment in favor of a bank in this case involving the deposit of a check that was allegedly forged. The bank established its breach of contract claim as a matter of law. Under the account agreement, the bank was entitled to provide only provisional credit for a deposit and the bank was entitled to seek repayment of any overdraft and associated charges from any account owner. The trial court erred in awarding attorney's fees. The nonmovant may create a fact issue by filing an affidavit contesting the reasonableness of the movant's attorney's fees. The trial court's judgment is affirmed, but the award of attorney's fees and costs is reversed and remanded. San Antonio Court of Appeals, No. 04-13-00383-CV, 03-12-2014

Practice Areas: Banking and Financial Institutions

Tex. App. Dist. 4

In re D.E.

The appellant challenges the trial court's finding that termination was in his daughter's best interest. The Holley factors do not constitute an exhaustive list, and evidence is not required on all of the factors to support a finding terminating a parent's rights. The evidence here includes the appellant's alleged failure to take mandated drug tests and his alleged inability to to handle the child's destructive behaviors and mental health issues. The trial court's termination order is affirmed. San Antonio Court of Appeals, No. 04-13-00794-CV, 03-12-2014

Practice Areas: Family Law

Tex. App. Dist. 4

Riddick v. Marmolejo

The appellant appeals an order dismissing a counterclaim he filed in the probate court. Although dismissal orders based on a lack of standing have been found to be final and appealable, in those cases the probate court also disposed of a phase of the proceedings. The test is not whether all issues and parties raised in the counterclaim have been disposed of; instead, the test is whether the issues and parties raised in this proceeding have been disposed of. The appeal is dismissed for lack of jurisdiction. San Antonio Court of Appeals, No. 04-13-00157-CV, 03-12-2014

Practice Areas: Trusts and Estates

Tex. App. Dist. 4

Ramirez v. State

A jury convicted the appellant of two counts of alleged possession of a controlled substance with intent to deliver. The appellant lacks standing to challenge the warrantless seizure of narcotics from a grassy area; a claim of privacy with regard to an open grassy area behind a convenience store is not objectively reasonable. That the assessment of attorney's fees were listed as "TBD" does not make the issue not ripe. Because there are insufficient facts to rebut the appellant's presumed indigency, the trial court's judgment is modified and affirmed. San Antonio Court of Appeals, Nos. 04-13-00384-CR, 04-13-00387-CR, 03-12-2014

Practice Areas: Criminal Law

5th Cir.

In re Deepwater Horizon

This case concerns the Deepwater Horizon disaster. The district court held that a settlement agreement did not require those submitting claims for certain business losses to provide evidence of causation. The settlement agreement does not require a claimant to submit evidence that the claim arose as a result of the oil spill. Each claimant does attest, though, under penalty of perjury, that the claim in fact was due to the Deepwater Horizon disaster. The district court's ruling is affirmed, an injunction prohibiting payment of the relevant claims is vacated. 5th U.S. Circuit Court of Appeals, Nos. 13-30315, 13-30329, 13-31220, 13-31316, 03-03-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 7

Rodriguez v. Sandhill Cattle Co., L.P.

The plaintiff appeals the trial court's grant of an adverse directed verdict in this case arising from a collision with cattle on a roadway. The cattle escaped from a pasture surrounded by a single strand of hot wire that had broken. To "permit" in Texas Agricultural Code §143.074 includes conduct undertaken by one who failed to act reasonably under the circumstances. Nothing in the record supports an inference that the defendant permitted its cattle to run at large. The trial court's judgment is affirmed. Amarillo Court of Appeals, No. 07-13-00043-CV, 03-10-2014

5th Cir.

Sanchez v. R. G. L.

Three children who are natives of Mexico, through a next friend, appeal the district court's finding under the Hague Convention on the Civil Aspects of International Child Abduction that they were being wrongfully retained in the United States and should be returned to their mother. An asylum finding that the children have a well-founded fear of persecution does not substitute for or control a finding under Article 13(b) of the Convention about whether return "would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Now that the children have been granted asylum, all available evidence from the asylum proceedings should be considered by the district court before determining whether to enforce the return order. The district court's order is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 12-50783, 02-21-2014

Practice Areas: Family Law

5th Cir.

Santos-Sanchez v. Holder

The Board of Immigration Appeals determined that the petitioner's conviction for allegedly aiding and abetting improper entry under 8 U.S.C. §1325(a) established his removability pursuant to 8 U.S.C. §1227(a)(1)(E)(i). After the BIA's decision in this case, the BIA concluded that conviction under §1325(a) necessarily establishes an alien's removability. But here the BIA actually relied on the documents associated with the petitioner's §1325(a) conviction, including the criminal complaint and judgment of conviction, to find that the petitioner's particular conduct established his removability. The petition for review is denied. 5th U.S. Circuit Court of Appeals, No. 08-60469, 03-07-2014

Practice Areas: Immigration Law

5th Cir.

Chenevert v. Travelers Indemnity Co.

An insurance company appeals the district court's denial of a motion to intervene finding that the insurer has no right of subrogation to recover its payments from an employee's settlement of a Jones Act claim. An insurer acquires a subrogation lien on the employee's Jones Act recovery for the amount of Longshore and Harbor Workers' Compensation Act benefits paid. The district court's denial is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 13-60119, 03-07-2014

Practice Areas: Admiralty

Tex. App. Dist. 10

Ferguson v. State

The appellant was charged by indictment with continuous sexual abuse of a child and sentenced to life imprisonment. A requested modification of the judgment to reflect a different time period during which the alleged abuse occurred would not result in a reversal. Accordingly, abatement is not necessary because it would amount to ordering the trial court to do a useless task. The trial court's judgment is affirmed as modified to reflect that the age of the victim at the time of the offense was 12 to 13 years old. Waco Court of Appeals, No. 10-13-00173-CR, 03-06-2014

Practice Areas: Criminal Law

Tex. App. Dist. 1

Tillman v. State

A jury found the appellant guilty of alleged capital murder. A hammer allegedly used in the murder is a deadly weapon because it was used in a manner capable of causing death or serious bodily injury, but a hammer is not manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury. The state cannot rely on the use of a deadly weapon in this circumstance to establish an inference of intent to commit murder. The cumulative force of the evidence supports an inference by the jury that appellant intended to kill. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-13-00398-CR, 03-06-2014

Practice Areas: Criminal Law

Tex. App. Dist. 1

Lewis v. State

The appellant argues the trial court abused its discretion by failing to hold a hearing on his claim that attorney's fees the trial court ordered him to pay could not be assessed as costs because the basis for the fees had allegedly been falsified. The trial court's order for appellant's attorney's fees to be paid from the money in the court registry was issued during the pendency of the charges against him. Those charges were dismissed and appellant was not convicted of those charges. The fees are not court costs; appellant cannot use Texas Code of Criminal Procedure article 103.008 to challenge them one year after the final disposition of his case. Any challenge to the order should have been raised on direct appeal from the final judgment. The trial court's order is affirmed. Houston's 1st Court of Appeals, No. 01-13-00458-CR, 03-06-2014

Practice Areas: Criminal Law

5th Cir.

In re Frost

A Texas debtor challenges the district court's determination that proceeds from the post-certification sale of an exempted homestead revert to the bankruptcy estate if not reinvested within six months, arguing that once the homestead is permanently exempted from the estate, any proceeds from its sale are also exempt. The sale of the homestead voided the homestead exemption and the failure to reinvest the proceeds within six months voided the proceeds exemption, regardless of whether the sale occurred pre- or post-petition. The district court's decision is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-50811, 03-05-2014

Practice Areas: Bankruptcy

Tex. App. Dist. 12

LG Electronics, USA Inc. v. Grigg

A TV manufacturer and a rental company appeal the denial of their motions for partial summary judgment in this suit alleging that the plaintiffs' father died from injuries after his rented television caught fire. An order terminating the parent-child relationship divests the child of all legal rights with respect to the parent except the right to inherit from him. The appellees do not have standing to sue. The trial court's order is reversed and remanded. Tyler Court of Appeals, No. 12-13-00302-CV, 02-28-2014

Practice Areas: Torts

Tex. App. Dist. 14

Musgrove v. State

The appellant challenges his felony convictions for two counts of assault on a public servant and one count of attempted escape. The appellant complains of limited access to his legal materials. Appellant was assisted by standby counsel and failed to demonstrate an actual injury. The appellant's inability to shower and shave did not adversely affect his appearance before the jury to an extent that would deprive him of a fair trial. The trial court did not abuse its discretion in preventing appellant, but not the state, from approaching witnesses during trial. The trial court erred in rendering judgment against appellant for attempted escape as a third-degree felony; his sentence for attempted escape was improperly enhanced by the same prior conviction that was used as an essential element of the charged offense. The trial court's judgment is affirmed as modified with regard to appellant's assault convictions. As to the attempted escape conviction, the judgment is reversed and remanded for a new punishment trial. Houston's 14th Court of Appeals, No. 14-13-00039-CR, 03-04-2014

Practice Areas: Criminal Law

Tex. App. Dist. 14

Salinas v. State

In this substitute majority opinion, the court of appeals considers the appellant's challenge to his conviction for injury to an elderly person. The appellant contends that court costs assessed under Texas Local Government Code §133.102(a)(1) are unconstitutional because the statute requires the judicial branch to perform an executive function by collecting a tax. Because the admittedly valid uses are severable and are not foreclosed by other assertedly invalid uses to which the challenged court cost is put, the appellant has not established that §133.102(a)(1)'s $133 court cost always operates unconstitutionally as a tax or that it must be deleted in its entirety from the trial court's judgment. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-00378-CR, 03-06-2014

Practice Areas: Criminal Law

Tex. App. Dist. 14

Kennebrew v. Harris

A withdrawing member of a limited liability company sued for the value of his membership interest and to recover funds he advanced on the company's behalf. After a nonjury trial, the trial court rescinded the parties' written agreement and ordered the withdrawing member's capital contribution returned, but determined that the failure to repay the funds advanced to the company breached an oral loan agreement. There is no evidence of an oral loan agreement. Because rescission is a remedy, it is available only if the other party to the contract has committed some wrong; there were no express factual findings in the company's favor. The withdrawing member's alleged failure to register under the Private Security Act would not render the management agreement unenforceable. The trial court's judgment is affirmed as modified. Houston's 14th Court of Appeals, No. 14-12-01015-CV, 14-12-01044-CV, 03-04-2014

Tex. App. Dist. 4

Linares v. State

The appellant challenges his conviction for alleged second-degree aggravated assault with a deadly weapon and alleged first degree aggravated kidnapping. The state's argument responding to defense counsel's argument that the state was threatening the alleged victim to testify and that the alleged victim was lying regarding the alleged events was not improper. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-12-00855-CR, 03-05-2014

Practice Areas: Criminal Law

Tex. App. Dist. 3

Carter v. Campbell

The executor of an estate appeals the order of the trial court requiring that she file an account of the estate and permitting any heir to request a hearing on distribution of the estate. The decedent's daughters signed an agreement that calls for the estate to be divided among them as equally as possible. The mere existence of a family settlement agreement does not automatically take an estate entirely outside of probate court jurisdiction. The agreement did not strip the probate system of jurisdiction or absolve the appellant of her duties as independent executor of the estate. The trial court's order is affirmed. Austin Court of Appeals, No. 03-11-00711-CV, 03-06-2014

Practice Areas: Trusts and Estates

Tex. App. Dist. 2

Foundation Assessment, Inc. v. O'Connor

The trial court denied the appellant's motion to dismiss, filed 22 months after the start of litigation, pursuant to Texas Civil Practice and Remedies Code §150.002 because the plaintiff did not file a certificate of merit along with her original petition. Although the Legislature has imposed deadlines on some statutory dismissal rights, it did not provide a deadline for filing a motion to dismiss under §150.002. The trial court's order is reversed and remanded. Fort Worth Court of Appeals, No. 02-13-00166-CV, 03-06-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 2

Leone v. State

The appellant challenges his conviction for harassment by a person in a correctional facility. The indictment on its face stated it was returned by a grand jury outside of its term. The trial court granted the state's motion to amend the indictment and denied a motion to set aside the indictment. To confer jurisdiction on a trial court, an indictment must charge: 1. a person and 2. the commission of an offense. To challenge defects of form, some prejudice must be shown. The appellant does not attempt to show that his substantial rights were affected by the defect of form in the indictment. The trial court's judgment is affirmed. Fort Worth Court of Appeals, No. 02-12-00102-CR, 03-06-2014

Practice Areas: Criminal Law

Tex. App. Dist. 4

Zambrano v. State

The appellant challenges his conviction for alleged second-degree aggravated assault with a deadly weapon and alleged first degree aggravated kidnapping. The state provided notice of an enhancement allegation before the start of the guilt-innocence phase of the trial and, although protests were made for timeliness or surprise, no suggestion was made that a continuance was required for discovery or preparation of a defense to the enhancement. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-12-00853-CR, 03-05-2014

Practice Areas: Criminal Law

Tex. App. Dist. 4

Chesapeake Exploration, L.L.C. v. Hyder

This appeal arises out of a dispute involving the construction of the royalty and overriding royalty clauses in an oil and gas lease between the appellant energy companies and the appellees royalty interest holders. An interpretation of the lease that excludes post-production costs and expenses from the wellhead to the point of delivery, but includes post-production costs and expenses from the point of delivery to the point of sale, is contrary to the plain reading of the royalty clause. While an overriding royalty is normally subject to post-production costs, Texas law allows the parties to modify this default rule; appellees are entitled to an overriding royalty free of all production and post-production costs, subject only to their portion of production taxes. The trial court correctly determined appellees are not entitled to recover on their counterclaim for lost and unaccounted for gas. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-12-00769-CV, 03-05-2014

Practice Areas: Energy and Natural Resources

Tex. App. Dist. 4

Martinez v. State

The appellant was arrested for his alleged second driving while intoxicated offense. The appellant pleaded guilty pursuant to an agreement after having spent more than 72 continuous hours in jail. For satisfaction of the 72-hour requirement in Texas Code of Criminal Procedure Article 42.12 §13(a)(1), confinement imposed as a condition of appellant's community supervision is not a "sentence" within the meaning of article 42.03. Therefore, appellant is not entitled a credit against his community supervision confinement. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-13-00442-CR, 03-05-2014

Practice Areas: Criminal Law

Tex. App. Dist. 5

Senior Care Resources, Inc. v. OAC Senior Living, LLC

The appellant sued the appellees alleging libel, business disparagement, and declaratory relief based on statements appellees allegedly made in communications to the Texas Department of Aging and Disability Services as part of appellees' acquisition of Medicaid beds in Rockwall County. DADS's determination of whether to grant or deny a community needs waiver is a quasi-judicial proceeding from which it follows that any communications made during such a proceeding are absolutely privileged or immune from suit. The trial court lacked jurisdiction to review the declaratory relief claim; the Administrative Procedure Act applies, and under its conferred authority, DADS is the agency that gets to decide whether a waiver is void because it was allegedly based on false information. The trial court's judgment is affirmed in part and vacated in part. Dallas Court of Appeals, No. 05-12-00495-CV, 03-05-2014

Tex. App. Dist. 6

Eldred v. State

The appellant challenges his conviction for alleged continuous sexual abuse of a child under 14 years of age. The outcry statute applies when the offense is committed while the victim is younger than the specified statutory age and the victim makes the outcry before her 18th birthday. Testimony by an expert in response to a hypothetical was relevant, given that the hypothetical arguably matched the facts of the case. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00128-CR, 03-05-2014

Practice Areas: Criminal Law

Tex. App. Dist. 5

Gator Apple, LLC v. Apple Texas Restaurants, Inc.

The appellant challenges several rulings by the trial court in this case involving a franchise agreement. A dispute developed after one franchisee hired employees within 6 months of their termination from another franchisee without obtaining a letter of release. The trial court did not err by determining that Kansas law applied to the breach of contract claim and to a liquidated damages provision in the franchise agreement setting damages at three times an employee's annual salary. The appellant failed to meet its burden of establishing the liquidated damages provision in section 22 was a penalty. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-12-01369-CV, 03-05-2014

Practice Areas: Contracts

Tex. App. Dist. 5

Humitech Development Corporation v. Perlman

The appellant challenges the trial court's confirmation of an arbitration award. The appellant's counsel challenges the trial court's sanction against him. Pettus does not stand for the proposition that a trial court must vacate an arbitration award anytime an arbitrator violates a procedural rule of the arbitration body. Statements made by the trial judge before she took the bench in favor of arbitration would not give rise to a reasonable doubt concerning the trial judge's impartiality. The sanction imposed was an abuse of discretion; that the legal contentions may be unwarranted based on the alleged facts of the case is not a violation of Texas Civil Practice & Remedies Code §10.001(3). The arbitration award is affirmed, the order imposing sanctions is reversed and remanded. Dallas Court of Appeals, No. 05-12-00857-CV, 02-27-2014

Practice Areas: Alternative Dispute Resolution , Arbitration (ADR)

Tex. App. Dist. 6

Abbott v. City of Paris

The appellant claims that the trial court erred by granting the city's plea to the jurisdiction in this suit regarding the appellant's attempt to expand his mobile home park. The developed portion of his property was permitted for a nonconforming use because it was in existence at the time the property was annexed by the city. The claim that a zoning change would not be granted for the undeveloped portion is pure speculation. Because the appellant has not obtained a final decision through use of administrative procedures, his takings claim is not ripe. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00092-CV, 03-07-2014

5th Cir.

Metroplexcore, L.L.C. v. Parsons Transportation, Inc.

The appellant, an environmental engineering firm, sued a general contractor claiming it was entitled to a share of the profits from a transit system project. The appellant was a member of the group created by the contractor for the bid. The contractor lost that bid, but several years later took over the project with a new set of subcontractors. There is enough evidence to meet the requisites for promissory estoppel: a promise, foreseeability of reliance thereon by the promisor, and substantial reliance by the promisee to his detriment. The summary judgment is affirmed in part, and reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 12-20466, 02-28-2014

Practice Areas: Contracts

5th Cir.

In re West Feliciana Acquisition, L.L.C.

The appellant challenges the district court's grant of summary judgment on its loan loss claims against its title insurance policy provider and related entities. Indemnity is only for actual loss caused by a title defect. When there are multiple causes of loss, the proper inquiry is whether the complained-of conduct was a substantial factor in bringing about the loss. The appellant did not create a genuine issue of material fact as to the essential steps of causation. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-30675, 02-27-2014

Practice Areas: Insurance Law

Tx. Sup. Ct.

In re Fisher

The trial court denied motions and pleas to the jurisdiction related to a forum selection clause in acquisition documents. The court of appeals denied mandamus relief. A common sense examination of the claims shows that Texas Civil Practice and Remedies Code §15.020 applies. Where the phrase "non-exclusive jurisdiction" is in a forum selection clause that also includes language reflecting intent that the venue choice is mandatory, the non-exclusive language does not necessarily control over the mandatory language. Mandamus relief is conditionally granted. Texas Supreme Court, No. 12-0163, 02-28-2014

Practice Areas: Appellate Law - Civil

5th Cir.

Brumfield v. Cain

The district court granted habeas relief for the petitioner, finding that the petitioner was mentally retarded and ineligible for execution. The state court was not required to provide the petitioner with funds to develop his claims. The state court's judgment was entitled to deference under the Antiterrorism and Effective Death Penalty Act. The district court's grant of habeas relief is reversed. 5th U.S. Circuit Court of Appeals, No. 12-30256, 02-28-2014

Practice Areas: Criminal Law

5th Cir.

United States v. Urias-Marrufo

The district court denied the defendant's motion to withdraw her guilty plea. When a Padilla claim is sufficiently presented during a motion to withdraw a plea, both legally and factually, a district court errs in failing to address the claim. If the court finds that a Padilla violation occurred, that finding compels the court to permit the defendant to withdraw the guilty plea. The district court's judgment is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 13-50085, 02-28-2014

Practice Areas: Criminal Law

5th Cir.

Estate of Montana Lance v. Lewisville Independent School District

The district court granted judgment in favor of the school district in this case alleging constitutional violations and discrimination against a special-needs student who killed himself at school. The plaintiffs cannot sustain their Rehabilitation Act of 1973 §504 claim because the school district implemented an individualized education program. Regarding the allegation of deliberate indifference, school districts are afforded flexibility in responding to unacceptable behavior and may tailor their responses to the circumstances. Because the record evidences a pattern of active responses by the school district to incidents involving the student, no discriminatory intent may be imputed to the school district. The evidence does not demonstrate that the school district knew about an immediate danger to the student's safety. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-41139, 02-28-2014

Practice Areas: Education Law

5th Cir.

Tiblier v. Dlabal

The pension plans of a medical practice invested in the bonds of an oil and gas company. After the oil and gas company stopped making interest payments on the bonds, plaintiffs filed suit alleging violations of the Employee Retirement Income Security Act. Summary judgment was granted in favor of the investment advisor. To satisfy the "authority or control" requirement in §1002(21)(A)(i), the plaintiffs must demonstrate that the advisor caused the plans' trustees to relinquish their independent discretion in investing the plans' funds and to instead follow the course that he prescribed. The advisor, who was paid a third party commission but not a fee connected to the investment, is not a ficuciary. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-50344, 02-28-2014

Practice Areas: Labor and Employment , Employee Benefits , Pensions and Other Retirement Benefits

5th Cir.

Perez v. Stephens

The petitioner's attorney, allegedly without consulting the habeas petitioner, failed to timely appeal the denial of the petitioner's habeas claims and certificate of appealability. Upon motion, the district vacated and reentered judgment to allow a timely appeal. The petitioner does not claim he was denied a full and fair hearing before the district court nor does he seek by the ruling to have the district court alter its ruling, but instead he seeks solely to use a Federal Rule of Civil Procedure 60(b) motion as a means of achieving an untimely appeal. The district court's order is vacated and the appeal is dismissed. 5th U.S. Circuit Court of Appeals, Nos. 13-70002, 13-70006, 02-26-2014

Practice Areas: Criminal Law

Tex. App. Dist. 1

Ex parte Zantos-Cuebas

The trial court denied as frivolous the appellant's petition for habeas corpus asking that his guilty plea be vacated. The appellant claims that, because he does not speak English and was not appointed a translator, he entered his plea without an awareness of the constitutional rights he was waiving. The face of the application and affidavits do not indicate that the appellant was manifestly entitled to no relief. The case is reversed and remanded to the trial court for the entry of a written order including findings of fact and conclusions of law. Houston's 1st Court of Appeals, No. 01-13-00958-CR, 02-25-2014

Practice Areas: Criminal Law

Tex. App. Dist. 14

Fleming & Associates, L.L.P v. Barton

This dispute arose between lawyers involved in the Fen-Phen pharmaceutical litigation over what expenses could be charged to a referring lawyer under the parties' letter agreement. Lawyers Johnson and Barton (J&B) referred cases to Fleming & Associates (F&A). Disputes arose concerning what expenses could be charged to J&B. Johnson then entered into a Profits Interest Transfer Agreement with F&A. The trial court did not err in refusing to reduce any damages awarded to appellees/cross-appellants by 45% pursuant to the PITA; F&A is not entitled to an extinguishment, or offset, of its damages to the extent of 45% pursuant to the PITA because the PITA is an agreement between it and Johnson, not it and J&B. The trial court erred by awarding statutory attorney's fees against it under Texas Civil Practice and Remedies Code §38.001 because a limited liability partnership is neither an individual nor a corporation. The trial court's judgment is affirmed as modified. Houston's 14th Court of Appeals, No. 14-12-00582-CV, 02-27-2014

Practice Areas: Contracts

Tex. App. Dist. 11

Nikolaev v. State

The appellant, a truck driver, contends that the evidence was insufficient to establish that he failed to comply with the sex offender registration requirement to notify law enforcement of a change of residence. Appellant's frequent and prolonged absences from the registered residence did not establish that he had stopped using the house as his primary residence. The lack of utility services at the registered address did not establish that the appellant no longer used the house as his residence. The trial court's judgment is reversed and a judgment of acquittal is rendered. Eastland Court of Appeals, No. 11-12-00049-CR, 02-27-2014

Practice Areas: Criminal Law

5th Cir.

In re BP RE, L.P.

A petition for panel rehearing, and for rehearing en banc, is denied. The panel opinion holds Article III of the U.S. Constitution precludes a bankruptcy court from entering final judgment in a non-core proceeding with the parties' consent. 5th U.S. Circuit Court of Appeals, No. 12-51270, 02-28-2014

Practice Areas: Bankruptcy

Tex. App. Dist. 14

Morgan v. Bronze Queen Management Co., LLC

The appellee bought a note and guaranty that had been the subject of an arbitration proceeding involving the appellant and the guaranty's previous owner. The previous owner nonsuited the claims involving that note and guarantee. The appellant did not object to the nonsuit. The trial court denied the appellant's motion to compel arbitration. The record contains no evidence that the appellant accepted an offer to arbitrate the dispute by performance. Filing a counterclaim in arbitration and withdrawing it before the claim is submitted to the arbitrator for decision does not constitute waiver. The trial court's order is affirmed. Houston's 14th Court of Appeals, No. 14-13-00535-CV, 02-27-2014

Practice Areas: Alternative Dispute Resolution , Arbitration (ADR)

Tex. App. Dist. 14

David Wight Construction Co. Ltd. v. Federal Deposit Insurance Commission

A bank provided financing for a real estate development. The general contractor alleged fraud, and the trial court granted summary judgment in favor of the bank. The summary judgment evidence would not allow a finding that the bank represented to the general contractor that the bank was withholding ten percent of each payment as "retainage" to be paid to the general contractor upon completion of its work on the project. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-01003-CV, 02-25-2014

Practice Areas: Torts

Tex. App. Dist. 14

In re E.A.F.

The appellant appeals from a decree terminating his parental rights. The trial court may not permit the withdrawal of the attorney ad litem absent a finding of good cause. Because the ad litem was not properly released of his duties, the appellant cannot show he was entitled to Faretta warnings regarding the consequences of such a release. The trial court's decree is affirmed. Houston's 14th Court of Appeals, No. 14-13-00869-CV, 02-25-2014

Practice Areas: Family Law

Tex. App. Dist. 9

In re McDonald

The probate court in this heirship proceeding ruled that the relator was not a "person interested in the welfare" of his grandson and struck the relator's demand for a jury trial. The probate court proceedings combined both heirship and administration issues. The relator paid funeral expenses and has standing as a creditor to the estate. The tender of funds to the court registry did not extinguish the administrator's right to dispute the relator's claim as a creditor. The Estates Code expressly grants standing to "anyone interested in the welfare" of a minor; this grant of standing is not limited to a parent, a court appointed ad litem, or a person appointed by a court. The petition for writ of mandamus is conditionally granted. Beaumont Court of Appeals, No. 09-13-00554-CV, 02-27-2014

Practice Areas: Trusts and Estates

Tex. App. Dist. 6

Morrison v. Whispering Pines Lodge I, L.L.P.

The trial court dismissed this slip and fall claim for failure to file an expert report as a health care liability claim. If there is at least an indirect connection between the claim and the provision of health care, the claim is a health care liability claim. The claim here is not totally untethered from health care, since the state of Texas requires the appellee nursing home to provide housekeeping services and a safe, clean and sanitary environment to its residents. Compliance with the expert report requirement could be accomplished by retaining a physician with the requisite training, education, and knowledge necessary to provide an opinion concerning the acceptable standard of health care and/or safety required for a nursing home facility. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00067-CV, 02-27-2014

Practice Areas: Health Law

Tex. App. Dist. 5

Palla v. Bio-One, Inc.

The appellant claims that the trial court erred by failing to apply the proper measure of damages for a tortious interference with contract claim. The jury's findings indicate it determined the damages related to the breach of contract claim and the damages related to the tortious interference with contract claim were coextensive only with respect to the lost benefits of the agreement which were a consequence of the tortious interference. The damages related to tortious interference differ from the total damages for Bio-One's breach of the agreement, and the variance between the damages found for breach of the agreement and for tortious interference with contract reflects the jury's judgment that two other defednants were not responsible for all of the damages caused by Bio-One's breach of the agreement. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-12-01657-CV, 02-24-2014

Practice Areas: Contracts

Tex. App. Dist. 7

McAllen Hospitals, L.P. v. Suehs

Hospitals appeal the trial court's order granting the Texas Health and Human Services Commission's plea to the jurisdiction and dismissing the hospitals' claims concerning medicaid reimbursement for certain inpatient claims. The hospitals cannot establish a viable takings claim. Until such time has passed that their interests are no longer subject to adjustment or recoupment under the Texas Administrative Code's utilization review provisions or its other investigative and review procedures, the hospitals' interests remain contingent and potential rather than definitive and unconditional. Because the hospitals failed to show that they availed themselves of procedures available to rebill the disputed claims as outpatient claims, they have not asserted a viable procedural due process claim. The UR/Medical Appeals Unit's determination did not result from a "contested case" as contemplated by the Administrative Procedure Act. The trial court has jurisdiction to review the hospitals' mandamus claims regarding the administrative appeals process and the handling of three "insufficient documentation" cases; that portion of the trial court's order is reversed and remanded, the order is otherwise affirmed. Amarillo Court of Appeals, No. 07-12-00291-CV, 02-24-2014

Practice Areas: Health Law

5th Cir.

Moore v. Louisiana Board of Elementary & Secondary Education

The district court enjoined the Louisiana Board of Elementary and Secondary Education, the Louisiana Department of Education, and the Superintendent of Education from implementing Act 1 and Act 2 of the 2012 Louisiana Legislature. Act 2 creates a school voucher program which diverts Minimum Foundation Program funds from the school districts to individual children so they can use the funds to attend a private school or take courses not offered in their public schools from other independent course providers. A Louisiana Supreme Court holding has mooted all issues related to Act 2. Act 1 vests authority for school staffing decisions primarily with school superintendents and principals. It also permits an "ineffectiveness" criterion to be used as the sole basis for discharging teachers. The district court lacked jurisdiction to enter an injunction against the two state agency defendants. The superintendant cannot be enjoined without some showing that Act 1 is causing or will cause him to violate federal law and that the prospective relief is necessary to prevent such a violation. The injunction is vacated and remanded for dismissal. 5th U.S. Circuit Court of Appeals, No. 12-31218, 02-24-2014

Practice Areas: Education Law

5th Cir.

United States v. Salazar

The appellant allegedly violated the terms of his supervised release, and was sentenced to a prison term plus an additional period of supervised release. Special conditions of supervised release must be reasonably related to one of the following statutory factors: the nature and circumstances of the offense and the history and characteristics of the defendant; the need to afford adequate deterrence to criminal conduct; the need to protect the public from further crimes of the defendant; and the need to provide the defendant with needed training, medical care, or other correctional treatment in the most effective manner. One of the special conditions, forbidding possession of sexually oriented materials, is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 12-50695, 02-24-2014

Practice Areas: Criminal Law

5th Cir.

Sanchez v. R. G. L.

Three children through a next friend appeal the district court's finding that they were being wrongfully retained in the U.S. and should be returned to their mother. The district court did not lack jurisdiction. The party sued had knowledge of the children's location and the authority to direct their placement. The absence of the Office of Refugee Resettlement as a party is not a meaningful defect. Because the exceptions to return in the Hague Convention on the Civil Aspects of International Child Abduction are prospective, the district court didn't err by failing to account for the mostly retrospective harm allegedly suffered by the children or the conclusions of a psychologist. An asylum grant does not supercede the enforceability of a district court's order that the children should be returned to their mother, as that order does not affect the responsibilities of either the Attorney General or Secretary of Homeland Security under the INA. An asylum grant does not remove from the district court the authority to make controlling findings on the potential harm to the child. The district court's order is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 12-50783, 02-21-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 1

Tope v. State

The appellant challenges a pretrial diversion program available to some alleged first-time DWI offenders in Harris County. The diversion program does not violate the seperation of powers doctrine. Because there is no right or entitlement to enter into pretrial diversion, appellant's due process rights were not implicated. The trial court didn't err by denying the appellant's request for the names and case numbers of people who were granted pretrial diversion. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, Nos. 01-12-00959-CR, 01-12-00960-CR, 02-20-2014

Practice Areas: Criminal Law

5th Cir.

United States v. Fernandez

The appellant argues that the district court committed reversible error in assessing two criminal history points rather than only one, because his prior sentence did not involve imprisonment. Although the appellant's incarceration occurred prior to a determination of his guilt, his ultimate sentence was premised on the fact that he had served time. In this way, his time-served credit was incorporated into his sentence. When a suspended prior sentence is at issue, the sentencing court must assess criminal history points based only on the non-suspended portion of the sentence. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-50131, 02-24-2014

Practice Areas: Criminal Law

5th Cir.

Scottsdale Insurance Co. v. Logansport Gaming, L.L.C.

This dispute concerns the interpretation of an insurance policy for commercial general liability and property insurance containing a protective safeguards endorsement. A fire occurred on the insured's property. The policy's use of the phrase "in complete working order" to modify "maintain" leaves no doubt that diligence alone is not enough to satisfy the plain terms of the policy. In conceding that the fire suppression system did not work on the day of the fire, the insured necessarily admits that its system was not "in complete working order, " and thus did not comply with the plain language of the policy. The district court's grant of summary judgment for the insurer is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-30645, 02-24-2014

Practice Areas: Insurance Law

5th Cir.

In re Deepwater Horizon

Louisiana coastal parishes filed suit against defendants involved in the Deepwater Horizon oil spill. The suit was removed to federal court and dismissed. 43 U.S.C. § 1349 requires a "but for" connection; it does not include a purposive element and there is no situs requirement. Federal law, the law of the point source, exclusively applies to the claims generated by the oil spill in any affected state or locality. The Oil Pollution Act applies as the law of the Outer Continental Shelf Lands Act point source and, along with the Clean Water Act penalties, furnishes a comprehensive remedial regime for affected states' governmental and private claims. There are no state remedies to save. The removal and the district court's dismissal are affirmed. 5th U.S. Circuit Court of Appeals, No. 12-30012, 02-24-2014

Practice Areas: Environmental Law

Tex. App. Dist. 11

Galindo v. Prosperity Partners, Inc.

The trial court dismissed, with prejudice, the underlying claims based on the appellants' failure to pay discovery sanctions. Once the appellants contended that the sanctions were cost-prohibitive and precluded their ability to continue with the litigation, the trial court was required to modify the sanctions order to provide that the sanctions were to be paid when a final judgment was entered or to make express findings, after a hearing, as to why the sanctions did not have a preclusive effect. The trial court abused its discretion when it dismissed the case for the appellants' failure to pay the very sanctions that they contended would preclude them from pursuing their suit. The trial court erred when it did not specify which attorneys were liable for the sanctions imposed. The trial court's sanctions order and dismissal order are reversed, and judgment is rendered that the appellees take nothing on their sanctions claim. Eastland Court of Appeals, No. 11-12-00034-CV, 02-21-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 10

Midstate Environmental Services, LP v. Peterson

The appellant pursues a restricted appeal from a default judgment. There were defects in both the citation and the return of citation. The absence of a seal is a defect in service that would make a default judgment improper. The failure to direct the citation to the defendant named in the petition is a defect that would preclude a default judgment. There is no indication on the return itself that it was ever filed with the clerk of the court, let alone that it was on file for 10 days. The trial court's judgment is reversed and remanded. Waco Court of Appeals, No. 10-13-00138-CV, 02-20-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 6

Duffey v. State

After an ex parte meeting with family of the alleged victim, the trial court rejected a previously announced plea agreement. A reasonable member of the public at large, knowing all the facts in the public domain concerning the judge's alleged conduct, would have a reasonable doubt as to the trial judge's impartiality in this case. The error was harmful, considering the risk of injustice to the parties, the risk that denial of relief will produce injustice in other cases, and the risk of undermining the public's confidence in the judicial process. The trial court's judgment is reversed and remanded for a new trial by a different judge. Texarkana Court of Appeals, No. 06-12-00197-CR, 02-21-2014

Practice Areas: Criminal Law

Tex. App. Dist. 2

Hall v. RDSL Enterprises LLC

The plaintiff appeals an adverse summary judgment in her suit alleging age discrimination. The plaintiff alleges that her employer eliminated the position of "food prep" specialist, and transferred those duties to younger employees. The plaintiff was 81 years old when she was terminated. The reduction-in-force prima facie standard may apply to a reduction in force by one employee. The appellant met her prima facie burden. The trial court's judgment is reversed and remanded. Fort Worth Court of Appeals, No. 02-12-00363-CV, 02-20-2014

Practice Areas: Labor and Employment

5th Cir.

United States v. Handy

On remand, the district court was ordered to enter a finding as to whether the appellant's possession of a firearm facilitated or had the potential to facilitate his alleged cocaine possession and to resentence the appellant, if necessary. The district court found resentencing unnecessary. In its order, the district court adopted a paragraph in the revised presentence report clarifying that it served as the factual predicate for its application of the sentencing enhancement under U.S. Sentencing Guidelines §2K2.1(b)(6). The appellant failed to object to the facts set forth in that paragraph. The district court's judgment on remand is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-40249, 02-20-2014

Practice Areas: Criminal Law

5th Cir.

Miresles-Zuniga v. Holder

An immigration judge found that the petitioner was not statutorily eligible for discretionary relief from a removal order because of the "stop-time rule" in 8 U.S.C. §1229b(d)(1). That the same Texas offense is referred to in one section as a crime involving moral turpitude but renders the alien removable under a separate section as a crime of domestic violence is not contrary to the statutory language. The petition for review is denied. 5th U.S. Circuit Court of Appeals, No. 13-60038, 02-14-2014

Practice Areas: Immigration Law

5th Cir.

Grimes v. BNSF Railway Co.

The appellant challenges a judgment giving collateral-estoppel effect, in his Federal Railway Safety Act suit, to a finding of fact made by a Public Law Board in the course of appellant's pursuit of his rights under a collective bargaining agreement with a railway company. In rejecting the application of collateral estoppel, the appellate court notes that the hearing was conducted by the railroad; the plaintiff was represented by the union rather than an attorney; the termination decision was made by a railroad employee, not by an impartial fact finder such as a judge or jury; the rules of evidence do not appear to have been controlling; and most crucially, the PLB's affirmance was based solely on the record. The judgment is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 13-60382, 02-17-2014

Practice Areas: Labor and Employment , Labor Law

Tex. App. Dist. 7

Shadden v. State

The appellant appeals the denial of his motion to suppress. The police received an anonymous tip that the appellant was allegedly assaulting a person at his residence and that he might be using a weapon. When appellant answered the door, he appeared shocked, and began backing away from the door, which began to close. The trial court could conclude that the officers' entry into appellant's home was based on a reasonable belief that their actions were immediately necessary to protect or preserve life or avoid serious injury. The trial court did not err in determining that the scope of the officer's search of the residence leading to the discovery of alleged methamphetamine in plain view did not exceed the exigency that legitimized his presence in the first place. The trial court's judgment is affirmed. Amarillo Court of Appeals, No. 07-13-00045-CR, 02-20-2014

Practice Areas: Criminal Law

5th Cir.

United States ex rel. Babalola v. Sharma

The district court in this qui tam action held that, because there was no qui tam complaint in existence at the time the government pursued criminal charges against the defendants, the criminal proceeding did not constitute an "alternate remedy" under 31 U.S.C. §3730(c)(5), and thus, the relators had no right to share in that recovery. Because there was no qui tam action pending at the commencement of the restitution proceeding, the restitution proceeding does not constitute an alternate remedy under the statute. The district court's partial summary judgment is affirmed and remanded. 5th U.S. Circuit Court of Appeals, No. 13-20182, 02-14-2014

Practice Areas: Criminal Law

5th Cir.

United States v. Lagrone

The appellant was charged in two felony counts of allegedly violating 18 U.S.C. §641. Section 641 permits the aggregation of thefts. Felony penalties for each misdemeanor-level theft are not clearly prescribed by the statute. The appellant is properly subject to only a single felony count under §641 and must be resentenced. The sentence is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 13-10049, 02-18-2014

Practice Areas: Criminal Law

Tex. App. Dist. 1

Compton v. Pfannenstiel

In this dispute over the conservatorship of two children, the trial court appointed their mother, father, and maternal grandmother as joint managing conservators, further designating the grandmother as the person with the right to designate the children's place of residence. Texas Family Code §153.131 applies to the appointment of a non-parent in addition to both parents. The trial court was within its discretion in naming a grandparent as a joint managing conservator to protect the children's physical health and emotional development. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-13-00062-CV, 02-13-2014

Practice Areas: Family Law

Tex. App. Dist. 1

Canfield v. State

The appellant challenges his conviction for capital murder as a co-conspirator or party. The appellant's attorney did not object to the state's use of an affidavit he signed during plea negotiations for impeachment purposes. Assuming this was deficient, the appellant failed to demonstrate prejudice. The jury witnessed other inconsistencies between the appellant's trial testimony, his earlier testimony, and the testimony of other witnesses. Credibility wasn't important here, given that the jury could have believed every word of appellant's trial testimony and still convicted him of capital murder as a co-conspirator. The fact that appellant engaged in some type of plea negotiations would not necessarily be contrary to appellant's version of events. The appellant's conviction is affirmed. Houston's 1st Court of Appeals, No. 01-12-00303-CR, 02-13-2014

Practice Areas: Criminal Law

Tex. App. Dist. 1

Ltd. v. PM Realty Group, LP

The appellant sued the appellees, providers of property management services, alleging breach of contract and other claims arising out of an agreement to provide remediation services in the aftermath of Hurricane Ike. The appellant is bound by its judicial admission that it completed its work on the properties pursuant to a contract with the property owners. It would be unjust to allow the appellant to disavow a contract that it had previously asserted with one group of entities and then proceed to recover for the same work from a different party under a different contract when it had used the first asserted contract to obtain a settlement award. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-12-00618-CV, 02-13-2014

Practice Areas: Contracts

Tex. App. Dist. 1

In re Bates

The relator seeks to compel the trial court to set aside its order granting the motion for new trial. An affidavit stating that the order was signed at some point before expiration of the trial court's plenary power is not given credit over the order itself, which is dated past the expiration. A nunc pro tunc order issued by a respondent trial court in violation of an appellate court stay order is void. The writ of mandamus is conditionally granted. Houston's 1st Court of Appeals, No. 01-13-00037-CV, 02-13-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 14

D.R. Horton-Texas, Ltd. v. Bernhard

A home builder contends that the trial court erred by enforcing the attorney's fees portion of an arbitration award and awarding additional attorney's fees for appealing the enforcement of the arbitration award. The contract does not specifically prohibit an arbitrator from awarding attorney's fees as damages in accordance with the Residential Construction Liability Act. The issue of attorney's fees was clearly submitted to the arbitrator, and the arbitrator consulted the contractual provisions and statutes regarding attorney's fees when reaching his conclusion. The arbitrator did not exceed his authority. There is no basis for modifying the arbitrator's award with additional attorney's fees for appeals. The trial court's judgment is affirmed as modified. Houston's 14th Court of Appeals, No. 14-12-01150-CV, 02-20-2014

Practice Areas: Alternative Dispute Resolution , Arbitration (ADR)

Tex. App. Dist. 14

Torres v. State

The appellant challenges his conviction for alleged aggravated sexual assault of a child. The jury reasonably could have believed the complainant's testimony, especially given the record evidence that the complainant's same allegations were corroborated over the course of several years by others to whom the complainant had made outcry. The determination of whether or not the complainant was coached was within the province of the jury. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-00690-CR, 02-20-2014

Practice Areas: Criminal Law

Tex. App. Dist. 14

Adams v. State

The appellant challenges the sufficiency of the evidence supporting the award of a specific amount in court costs assessed against him in the trial court's judgment following his plea of "guilty" to an indictment. The lack of a written bill pursuant to Texas Code of Criminal Procedure Article 103.001 does not make the appellant's claim unripe. Any bill of costs created after the judgment would be insufficient to support the trial court's assessment of a specific amount of costs in the judgment. The trial court's judgment is affirmed as modified to delete the assessment of a specific dollar amount as court costs. Houston's 14th Court of Appeals, No. 14-12-00768-CR, 02-20-2014

Practice Areas: Criminal Law

Tex. App. Dist. 4

In re Kramer

This is a contempt judgment. The court finds that the appellant's attorney should be held in contempt for willfully and intentionally failing to comply with an order to file a reasonable explanation for not timely filing appellant's brief, an order to file a brief by a certain date, and an order to appear and show cause why she should not be held in contempt. San Antonio Court of Appeals, No. 04-13-00346-CR, 02-18-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 4

Tarrant County Democratic Party v. Steen

This appeal involves claims for reimbursement of attorney's fees and expenses in connection with an election contest. Texas Election Code §173.086(a) waives the Secretary of State's sovereign immunity for a suit that complies with its requirements; the Election Code imposes statutory prerequisites which were either met or waived, and the appellants successfully invoked §173.086(a)'s waiver. The appellants' fees regarding a suit filed four months after the primary election were in connection with the primary election, and the appellants are entitled to reimbursement of those fees. The trial court's judgment is reversed and rendered in part, and affirmed in part. San Antonio Court of Appeals, No. 04-13-00069-CV, 02-19-2014

Practice Areas: Election and Political Law

Tex. App. Dist. 6

Cervantes v. McKellar

Plaintiffs appeal the trial court's grant of a hospital's plea to the jurisdiction. The appellant complains that injury was caused by delayed delivery due to the nurses' alleged failure to timely respond to information provided by a fetal heart monitor. Negligent interpretation and delayed response to information do not involve the use of tangible personal property and, therefore, do not fall within the Texas Tort Claims Act waiver provisions. The appellant's allegations are incurably defective. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00111-CV, 02-19-2014

Practice Areas: Health Law

Tex. App. Dist. 6

Gray v. Sangrey

The plaintiff brought suit against her daughter and son-in-law, seeking to impose a constructive trust against a house and lot that had been deeded to the the daughter and son-in-law. The trial court found, inter alia, that the plaintiff and daughter had a confidential relationship, and that the daughter breached her fiduciary duty. The court placed a constructive trust on the house. Uncontradicted testimony established the existence of a trust relationship. Prior to the transaction, there was a consistent pattern of care and assistance that rises above mere acts of child/parent kindness for an extended period of time, and that pattern continued and intensified when the plaintiff moved next door to the daughter. The transaction between the principal and the fiduciary give rise to unjust enrichment. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00043-CV, 02-20-2014

Tex. App. Dist. 9

Fresh Coat, Inc. v. Parexlahabra, Inc.

The trial court granted summary judgment in favor of a manufacturer on a statutory indemnity claim brought against it by a company that installed an allegedly defective product, an exterior insulation and finishing system, on the exterior walls of various homes. The filing of a suit, and not a letter from a user complaining of a manufacturer's product, is the action required to prevent the operation of the products liability statute of repose. Because the installer presented no evidence to show that it settled "products liability actions" under Texas Civil Practice and Remedies Code Chapter 82 , the trial court properly granted the manufacturer's no-evidence motion. The trial court's judgment is affirmed. Beaumont Court of Appeals, No. 09-13-00067-CV, 02-20-2014

Practice Areas: Products Liability

Tex. App. Dist. 8

Velvet Snout, LLC v. Sharp

The trial court entered a take nothing judgment on the appellant's breach of contract and fraud claims. The appellant had rubber flooring installed at her dog grooming facility, and she chose chemical welding for the installation process. There was evidence of excessive water on the floor, and that third persons had made repairs. The evidence supported the trial court's negative causation finding. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-12-00202-CV, 02-19-2014

Practice Areas: Contracts

Tex. App. Dist. 7

Barnes v. State

The appellant, who was charged by indictment with unlawful possession of a firearm, challenges the trial court's ruling on his motion to suppress. The officers were told that the appellant was a convicted felon with guns in his car and was threatening to kill people, therefore, a frisk of appellant for weapons was justified. Once an officer observed alleged marijuana in plain view probable cause attached to search the interior of the vehicle including compartments, such as the glove compartment and center console, where other contraband might have been stashed. The trial court's judgment is affirmed. Amarillo Court of Appeals, No. 07-11-00382-CR, 02-13-2014

Practice Areas: Criminal Law

Tx. Sup. Ct.

Coinmach Corp. v. Aspenwood Apartment Corp.

An operator of laundry machines entered into a 10-year lease at an apartment complex. The property changed hands, and the new ownder gave the operator written notice to vacate. The trial court entered summary judgment for the tenant on all of the owner's claims, and the court of appeals reversed and remanded in part. A tenant at sufferance cannot be liable for breach of the previously-terminated lease agreement; a tenant at sufferance is a trespasser and can be liable in tort (although the extent of liability depends on the nature of the trespass), including, in this case, aleged tortious interference with prospective business relations; and the tenant in this case cannot be liable under the DTPA because the property owner was not a consumer. The property owner here cannot recover under the UDJA. The court of appeals' judgment is affirmed in part, reversed in part, rendered on the declaratory relief claim, and remanded. Texas Supreme Court, No. 11-0213, 02-14-2014

5th Cir.

Sarmientos v. Holder

The petitioner challenges the immigration judge's conclusion that he is not eligible for cancellation of removal because he committed an aggravated felony. The least of the acts criminalized by the alleged delivery of cocaine crime under the subject Florida statute does not necessarily violate the federal cocaine distribution statute since the federal offense requires the prosecution to prove beyond a reasonable doubt an element that the state offense does not: knowledge of the illicit nature of the substance. The state conviction is thus not categorically an aggravated felony. The petition for review is granted, and the IJ decision is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 13-60086, 02-12-2014

Practice Areas: Immigration Law

5th Cir.

United States v. Baker

The appellant challenges a sentencing enhancement for distribution of child pornography through the use of a file-sharing program. The enhancement was applied absent evidence that the appellant knew the program enabled other users to access the child pornography he downloaded. U.S. Sentencing Guidelines §2G2.2(b)(3)(F) does not contain a scienter requirement. The district court's imposition of the enhancement is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-10834, 02-12-2014

Practice Areas: Criminal Law

5th Cir.

Morris v. Livingston

The plaintiff challenges the constitutionality of a Texas statute providing that inmates must pay a $100 annual health care services fee when they receive medical treatment in the prison system. The appellant has not pleaded sufficient facts to show that the health care services fee acts as a functional denial of medical care, by requiring him to obtain either medical care or basic necessities. A posted notice of the statute in the prison is sufficient for due process. The appellant has not established a fourth amendment claim; appellant failed to show that the taking of funds from his inmate trust fund account to pay for his medical care was unreasonable in light of the goal of controlling the prison budget. The district court's judgment is affirmed. 5th U.S. Circuit, No. 12-50848, 01-10-2014

Practice Areas: Constitutional Law

5th Cir.

In re Green Hills Development Company, L.L.C.

The appellant challenges the dismissal of its petition for involuntary bankruptcy filed against the appellee pursuant to 11 U.S.C. §303. The decision not to file a counter-claim does not limit the appellee's arguments on appeal. An appellee is not limited to the reasoning of the district court and may raise any argument that is supported by the record to defend the judgment. A claim holder does not have standing to file an involuntary petition if there is a bona fide dispute as to liability or amount of the claim. Evidence of a bona fide dispute is not limited to judgments; the existence and character of pending but unresolved litigation may be considered as evidence of a bona fide dispute. The district court's dismissal is affirmed, a motion for judicial notice is granted, appellee's motion for sanctions is denied. 5th U.S. Circuit Court of Appeals, No. 12-60784, 02-03-2014

Practice Areas: Bankruptcy

5th Cir.

Ayers v. Board of Regents University of Texas System

The appellant challenges the dismissal of his First Amendment and due process claims in this wrongful termination suit against his former employer. The appellant abandoned his First Amendment claim by ignoring multiple opportunities to press the district court for a ruling on that claim, ignoring his failure to inform the district court following the entry of final judgment that it had not ruled on his First Amendment claim. By scattering his allegations of arbitrary and capricious termination throughout his complaint and failing to press the district court for a ruling, the appellant waived his right to the pursue the substantive due process claim on appeal. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-51166, 02-10-2014

Practice Areas: Labor and Employment

5th Cir.

Art Midwest Inc. v. Atlantic Limited Partnership XII

In this case arising from the collapse of a real estate transaction, the defendants-appellees argue that the decision by the plaintiff-appellants not to cross-appeal a jury's finding that the defendants-appellees did not commit fraud prevents them from later raising the same claims. The appellants could have filed a "protective" or "conditional" cross-appeal of the adverse fraud finding. By not cross-appealing the fraud finding, the appellants could not raise the same fraud claims on remand. An award of combined contribution amounts is vacated, the district court's judgment is remanded and otherwise affirmed. 5th U.S. Circuit Court of Appeals, No. 11-11140, 02-03-2014

Practice Areas: Appellate Law - Civil

5th Cir.

Carl E. Woodward, L.L.C. v. Acceptance Indemnity Insurance Co.

The district court held there was a duty to defend in this appeal arising from claims of alleged negligent construction of a condominium project in south Mississippi. Under the policy, claims need not be asserted during the named insured's ongoing operations to fall within the scope of coverage, but the claims must be causally related to the ongoing operations. Even accepting the district court's factual finding that damage had occurred during ongoing operations, the only damage supported by allegation is the construction that was not in conformity with plans and specifications. Liability for such damages arises out of completed operations. The district court's judgment is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 12-60561, 02-11-2014

Practice Areas: Insurance Law

5th Cir.

United States v. Chacon

The appellant, who was convicted of alleged illegal reentry, argues that a sentencing enhancement was improper because he was convicted of an "attempt" offense. A crime of violence includes an attempt to commit a crime of violence. The appellant did not argue that argue that an "attempt" under Maryland law is different from an "attempt" under the U.S. Sentencing Guidelines. The district court's judgment is affirmed. No. 12-41301, 02-06-2014

Practice Areas: Criminal Law

5th Cir.

Siwe v. Holder

An immigration judge issued a removal order, rejecting the petitioner's arguments that he was entitled to adjust his status from asylee to lawful permanent resident under Immigration and Nationality Act Section 209(b) and that he was entitled to deferral of removal under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Board of Immigration Appeals affirmed. The plain language of the statute does not require an alien to maintain asylum status to be eligible for an adjustment of status under Section 209(b). The appellate court lacks jurisdiction to review the CAT request. The petition is dismissed in part, vacated in part, and remanded. 5th U.S. Circuit Court of Appeals, No. 12-60546, 02-06-2014

Practice Areas: Immigration Law

Tex. App. Dist. 1

Mauldin v. Clements

The appellant challenges the trial court's final order awarding the paternal grandparents sole managing conservatorship of her two children. A preponderance of the evidence supported the trial court's implied finding that the appellant was not, at the time of the grandparent's intervention, a suitable person to have custody of the children and that appointing her as the children's managing conservator would have significantly impaired their emotional development. The parental presumption does not apply in modification suits. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-12-00016-CV, 02-04-2014

Practice Areas: Family Law

Tex. App. Dist. 1

Lyssy v. State

The appellant moved to suppress evidence of a blood draw taken the night of his arrest. He argued that the report of his criminal history on which the officer relied was not reliable or credible because it listed a conviction for "driving while intoxicated 2nd" but no prior DWI conviction. The appellant forfeited his objection to the constitutionality of taking blood under Texas Transportation Code §724.012(b). The context of the motion to suppress, as it developed at the hearing, demonstrates that the challenge was based solely on a failure to observe the statute's terms, not an attack on the constitutionality of what it authorizes. When the officer heard from his dispatcher that the appellant had been allegedly convicted of "DWI Second Conviction, " he possessed reliable information from a credible source that the appellant had been convicted twice of driving while intoxicated. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-12-00898-CR, 02-06-2014

Practice Areas: Criminal Law

Tex. App. Dist. 1

LP v. Harris County Appraisal District

The appellants challenge the appraised value of two commercial properties for the 2010 tax year. no portion of the assessed tax was paid on either property in dispute prior to the delinquency deadline, therefore the appellant failed to substantially comply with section 42.08(b). The appellant failed to show that he was unable to pay the taxes not in dispute, and failed to inform the tax office that he would be unable to pay. The trial court did not err in concluding that the appellant was not excused from the prepayment requirement. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-11-00874-CV, 02-04-2014

Practice Areas: Taxation

Tex. App. Dist. 1

Lopez v. State

The appellant, who was convicted of alleged murder, argues he received ineffective assistance. The appellant argues his attorney failed to discover that he had represented one of the persons who allegedly assaulted the appellant. That the attorney conducted an inadequate investigation, and was therefore unaware of the alleged criminal histories of the persons who allegedly assaulted his client, is but one possible inference. Another is that the attorney believed that such evidence was inadmissible character evidence. There is no compelling inference that the attorney's advice to plead guilty was tainted by an actual conflict of interest. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-12-00997-CR, 02-04-2014

Practice Areas: Criminal Law

5th Cir.

Reed v. Stephens

The petitioner-appellant was convicted of capital murder and sentenced to death. The district court's rejection of actual innocence is not reasonably debatable. The affidavits submitted by the appellant create, at best, the possibility that the appellant's sperm entered the victim more than a day before her death, leading to the inference that the appellant did not sexually assault the victim. The condition of the victim's body strongly supports the conclusion that she was the victim of a sexual assault and that the sperm inside her did not result from a consensual encounter. Although the district court incorrectly concluded that it was not required to review the appellant's ineffective assistance claims, the district court rejects those claims including that appellant's counsel was deficient for failing to present evidence showing a relationship between the appellant and the victim, and evidence of alleged abuses against women and minorities by the victim's fiance. A certificate of appealability is denied. 5th U.S. Circuit Court of Appeals, No. 13-70009, 01-10-2014

Practice Areas: Criminal Law

Tex. App. Dist. 13

Absalon v. State

The appellant was convicted of alleged of capital murder and sentenced to life imprisonment for a crime allegedly committed 26 years before his arrest. As a condition for probation related to an unrelated criminal mischief charge, the appellant attended a substance abuse treatment program. The trial court did not abuse its discretion in denying the appellant's motion to suppress statements he made during the course of the program. The trial court did not err by allowing the results of a presumptive test for blood on a towel. The trial court's judgment is affirmed. Corpus Christi Court of Appeals, No. 13-12-00666-CR, 02-13-2014

Practice Areas: Criminal Law

Tex. App. Dist. 13

In re Estate of Araguz

After a volunteer firefighter died in the line of duty, his mother filed suit to declare his marriage void as a matter of law on the grounds that it constituted a same-sex marriage. Texas law recognizes that an individual who has had a "sex change" is eligible to marry a person of the opposite sex. The condition of gender dysphoria-including its symptoms, diagnosis, and treatment-are issues of fact not within our common knowledge and therefore require expert testimony. Because a rational trier of fact could draw a reasonable inference that the firefighter's wife was male based on her male sex organs, without the need for expert testimony, the evidence was sufficient to defeat a no evidence motion for summary judgment. The trial court's judgment declaring the marriage void is reversed and remanded. Corpus Christi Court of Appeals, No. 13-11-00490-CV, 02-13-2014

Practice Areas: Family Law

Tex. App. Dist. 14

Ex parte Ragston

This is an appeal from the denial of a pretrial writ of habeas corpus. Although the scope of punishment should be known before trial in order to voir dire prospective jurors, uncertainty in sentencing does not prevent the state from announcing ready. The sentencing statute was amended and the appellant did not argue that the statute, as currently written, would operate unconstitutionally if he were to proceed to trial today and be convicted of capital murder. The trial court erred by holding appellant without bond on his charges of capital murder and murder in the first degree. The denial of habeas relief is affirmed as reformed. Houston's 14th Court of Appeals, No. 14-13-00584-CR, 02-06-2014

Practice Areas: Criminal Law

Tex. App. Dist. 14

Martin v. Chick-Fil-A

This is a premises liability case. The plaintiff allegedly tripped on a concrete lane divider, fell, and suffered a knee injury. Without specifying grounds, the trial court granted the defendant's traditional and no-evidence motions for summary judgment. The plaintiff presented no evidence that the parking block presented an unreasonable risk of harm. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00025-CV, 02-04-2014

Practice Areas: Torts

Tex. App. Dist. 14

Tollett v. State

The appellant challenges his conviction of alleged misdemeanor driving while intoxicated for operating a motor vehicle in a public place while allegedly intoxicated. The appellant was not denied his constitutional rights by the trial court's denial of his request to cross-examine an officer about the officer's 2006 termination because the officer allegedly failied to file a mandatory "use of force" form after his gun accidentally discharged during an incident, and then allegedly intentionally withheld information about this accidental discharge when testifying during a trial. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-01037-CR, 02-04-2014

Practice Areas: Criminal Law

Tex. App. Dist. 10

Turner v. State

The appellant challenges his conviction for alleged manslaughter. The alleged victim's failure to yield the right of way was not clearly sufficient by itself to have caused the collision and the appellant's very high rate of speed was not clearly insufficient by itself to have caused the collision. Ingestion of a controlled substance or drug as a reckless act may be included in an indictment for manslaughter. Additionally, because the allegation of the ingestion of a controlled substance was set forth conjunctively in the indictment with the other allegations regarding the appellant's driving, the trial court's denial of the motion to quash was not erroneous. A motion to quash the indictment cannot be used to argue that the prosecution is unable to prove one of the elements of the crime. Waco Court of Appeals, No. 10-12-00367-CR, 01-30-2014

Practice Areas: Criminal Law

Tex. App. Dist. 14

In re Immobiliere Jeuness Establissement

The relator is an entity organized under the laws of Lichtenstein and a limited partner in 29 Kuykendahl Road Ltd., which, in turn, is a limited partner in 9.2 Louetta Road Ltd. (the "partnerships"). The relator petitions for writ of mandamus to compel the trial judge to set aside abatement orders. The underlying suit was not maintained by the partnerships. Instead, it was brought as a derivative action by the relator pursuant to Texas Business Organizations Code §153.401. Because the partnerships are not maintaining the suit, their forfeiture of the right to transact business in Texas does not require abatement of the suit under §153.309. Mandamus is conditionally granted. Houston's 14th Court of Appeals, No. 14-13-00771-CV, 02-06-2014

Practice Areas: Business Entities

Tex. App. Dist. 14

Branch v. Monumental Life Insurance Co.

The former wife of the decedent appeals the trial court's ruling that she is not entitled to interpleaded funds in this dispute over life insurance proceeds. The insurance company's purported failure to offer evidence disproving her claims is no evidence that the appellant was entitled to prevail. Where, as here, no marital- property agreement is involved, a divorce's effect on the designation of a spouse as a life-insurance beneficiary is now governed by statute. The designation of the appellant as a life-insurance beneficiary is ineffective as a matter of law. Evidence that she paid premiums is irrelevant to her claims. The judgment of the trial court is affirmed as to the former wife, and the appeals of two other parties are dismissed. Houston's 14th Court of Appeals, No. 14-12-01019-CV, 02-11-2014

Practice Areas: Insurance Law

Tex. App. Dist. 2

City of Willow Park v. E.S. & C.M., Inc.

The appellee brought claims against a city for alleged breach of contract and quantum meruit. The trial court denied the city's plea to the jurisdiction. A contractual provision purporting to retain immunity in direct conflict with Texas Local Government Code §271.152 contravenes public policy and is void. The appellant properly raised the issue of attorney's fees in its plea to the jurisdiction. Section 271.152 does not allow governmental entities to waive immunity for quantum meruit claims. The trial court's judgment is affirmed in part, reversed and rendered in part, and remanded. Fort Worth Court of Appeals, No. 02-13-00272-CV, 02-06-2014

Tex. App. Dist. 3

Cirrus Exploration Co. v. Combs

In this appeal from a final summary judgment in favor of the Comptroller in a tax-refund suit, the appellant argues its purchase of two helicopters qualifies for a sales-tax exemption under Tax Code §151.328. Agency deference is appropriate only where the statute or rule in question is ambiguous. Because the appellant is authorized by the FAA to operate its helicopter as a common carrier transporting persons or property for hire in the regular course of its business, it is a "licensed and certificated carrier" under the Comptroller's regulations. The district court's judgment is reversed and rendered. Austin Court of Appeals, No. 03-13-00036-CV, 02-12-2014

Practice Areas: Taxation

Tex. App. Dist. 14

Ramirez v. State

The appellant was charged with aggravated robbery with a deadly weapon, and convicted of the lesser-included offense of robbery. A defendant is not entitled to an instruction on the lesser-included offense of theft without clear evidence of value in the record. The appellant failed to demonstrate a reasonable probability that the outcome of the proceedings would have been different but for counsel's failure to elicit testimony of the stolen truck's value. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-01130-CR, 02-04-2014

Practice Areas: Criminal Law

Tex. App. Dist. 14

Harris County Sheriff's Civil Service Commission v. Guthrie

The Sheriff's Civil Service Commission appeals the district court's ruling that reversed the commission's decision to uphold a termination decision. The sherriff's termination stemmed principally from the sherriff's alleged conduct during a theft investigation at a car wash after his wife reported $17 had been stolen from her vehicle. The terminated sherriff received a proposed termination letter and several documents, including a signed, written statement by the general manager of the car wash providing considerable detail regarding the sherriff's alleged conduct and its impact on the general manager and the car wash. The general manager could therefore properly be considered a complainant as defined for purposes of Texas Government Code §614.023 purposes. Houston's 14th Court of Appeals, No. 14-12-00474-CV, 01-13-2014

Tex. App. Dist. 3

City of Austin v. Chandler

A jury returned a verdict favoring the appellees on their claim that a city's method of consolidating the Public Safety Emergency Management Department into the Austin Police Department disparately impacted older PSEM employees by stripping them of their rank and years of service. Given that disparate-impact claims necessarily assert that a facially neutral employment practice adversely affected older employees, it would be wholly illogical to say that employees can never bring a disparate-impact claim when the facially neutral policy relies on factors-like pension status or seniority-that are "empirically correlated with age." The jury could reasonably have concluded that the 9.9 percentage-point difference in raises after the consolidation is sufficiently substantial to raise an inference of causation. The trial court's judgment is affirmed. Austin Court of Appeals, No. 03-12-00057-CV, 02-07-2014

Practice Areas: Labor and Employment

Tex. App. Dist. 4

City of San Antonio v. Kopplow Development, Inc.

On remand from the Texas Supreme Court, the appelate court considers a cross-appellant's argument that its vested right to develop taken property meant that the trial court erred in excluding evidence of the value of the entire property. The trial court erred in concluding that Texas Local Government Code §245.004(9) exempted the cross-appellant's vested rights, and in excluding evidence of the cost to fill the property from 741 feet to 743 feet due to the city's new flooding regulations. The trial court's judgment awarding damages is reversed and remanded for a new trial on the issue of remainder damages related to the inverse condemnation claim. San Antonio Court of Appeals, No. 04-09-00403-CV, 02-05-2014

Tex. App. Dist. 4

Huff Energy Fund, L.P. v. Longview Energy Co.

The appellant challenges court-ordered discovery and the amount of a court-ordered supersedeas bond. The trial court ordered ongoing discovery "for the duration of the appeal." a plain reading of this judgment supports the conclusion that the $95, 500, 000 is compensatory in nature. The amount of the security required to suspend a judgment pursuant Texas Civil Practice and Remedies Code §52.006(b) applies per judgment and not per judgment debtor. The trial court did not abuse its discretion in ordering, pursuant to Texas Rule of Appellate Procedure 24.1(e), the periodic reporting to monitor and thus secure the trust assets during pendency of the appeal when, as here, evidence was presented demonstrating the assets controlled by the judgment debtors are at risk of expiring or being depleted. The order does not conflict with Texas Civil Practice and Remedies Code Chapter 52. The appellant's motion is affirmed in part and denied in part. San Antonio Court of Appeals, No. 04-12-00630-CV, 02-12-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 4

In re Willa Peters Hubberd Testamentary Trust

A trust beneficiary appeals the probate court's orders modifying the terms of the testamentary trust based on a mediated settlement agreement signed by all of the parties to the underlying cause and their attorneys. Because the mediator was an attorney who was authorized to represent the beneficiaries and the trustee in filing the petition, he had standing to file the petition. Each purpose of the trust is equal in determining whether compliance with the terms of the trust would defeat or substantially impair those purposes based on a circumstance not anticipated by the settlor. Quasi-estoppel does not preclude the appellant from arguing that the probate court was without authority to order modifications to the trust that were in violation of Texas Property Code §112.054. The probate court's orders are affirmed in part and reversed and rendered in part. San Antonio Court of Appeals, No. 04-13-00452-CV, 02-12-2014

Practice Areas: Trusts and Estates

Tex. App. Dist. 4

Benavidez v. State

The appellant pleaded nolo contendere to three counts of aggravated sexual assault of a child. The appeal is frivolous. Nothing in the record shows a material change in the appellant's financial circumstances since counsel was appointed to represent him. Absent a showing of a material change in financial circumstances, it was error for the district clerk to assess attorney's fees against him in the bill of costs. The district court is ordered to prepare and file a corrected bill of costs. San Antonio Court of Appeals, No. 04-13-00029-CR, 02-05-2014

Practice Areas: Criminal Law

Tex. App. Dist. 4

Benavides v. Mathis

A trustee was appointed temporary guardian of the person and estate of Carlos Y. Benavides, Jr. Benavides' wife sued, claiming that one-half of the distributions to the estate were owed to her. Because the trust is irrevocable, and Benavides does not have a present, possessory interest in the corpus of the irrevocable trust, the distributions received are not community property. Summary judgment in favor of the trustee is affirmed. San Antonio Court of Appeals, No. 04-13-00186-CV, 02-12-2014

Practice Areas: Trusts and Estates

Tex. App. Dist. 4

Methodist Healthcare System of San Antonio, Ltd. v. Dewey

A hospital appeals the trial court's order order denying a motion to dismiss for failure to file an expert report. The plaintiff was a visitor who was fell after a door allegedly closed on him. The claim does not implicate a standard of care that requires medical or medical safety expert testimony to prove or refute its merits, and therefore, it is not a health care liability claim. The trial court's order is affirmed. San Antonio Court of Appeals, No. 04-13-00277-CV, 02-05-2014

Practice Areas: Health Law

Tex. App. Dist. 4

Ex parte Campos Leal

The appellant claims his trial attorneys were ineffective for failing to properly advise him of the immigration consequences of his no contest pleas. The attorney in the first case was not ineffective. It was not clear that appellant would be deported as a result of a single conviction for possession of marijuana. The terms of the relevant immigration statutes are succinct, clear, and explicit in defining deportation as a consequence of appellant's second conviction. Advising a criminal defendant that his plea will result in "deportation proceedings" is not the equivalent of advising the defendant that his conviction will result in deportation. The trial court's judgment is affirmed in part, and reversed and remanded. San Antonio Court of Appeals, No. 04-13-00633-CR, 04-13-00634-CR, 02-12-2014

Practice Areas: Criminal Law

Tex. App. Dist. 4

Rodriguez v. State

This is a substituted opinion. The appellant claims that he was entitled to a 10-year plea-bargain offer from the state and that the trial court was required to accept the 10-year plea agreement. If the appellant had received competent advice prior to trial, there is a reasonable probability that he would have accepted the original 10-year plea-bargain offer. The state was required to reoffer the 10-year plea bargain after the original trial judge recused herself. The trial court's judgment is reversed and remanded. San Antonio Court of Appeals, No. 04-12-00341-CR, 02-05-2014

Practice Areas: Criminal Law

Tex. App. Dist. 4

Christus Santa Rosa Health Care Corp. v. Vasquez

A hospital appeals the denial of its motion to dismiss based on the plaintiff's expert report. If a plaintiff chooses to serve its expert reports well before the 120-day deadline, as the plaintiff did in this case, the hospital was still required to file objections to the report within 21 days after they were served, even though a motion to dismiss could not yet be filed. The trial court could not grant or deny the motion to dismiss the cause of action during the 120-day window. The trial court's order is affirmed. No. 04-13-00564-CV, 2-05-2014

Practice Areas: Health Law

Tex. App. Dist. 4

Ramirez v. State

The appellant contends the evidence at trial was insufficient to prove beyond a reasonable doubt that the person named in the indictment as the owner of the house he allegedly burglarized was the "owner" within the meaning of the Penal Code. A rationaly jury could conclude that the person in the house was a guest who had the right to use kitchen appliances and implements and the right to deny entry to a person who had no right to enter the house at all. The guest had a greater right of possession than the appellant. The convictions are affirmed. San Antonio Court of Appeals, No. 04-12-00764-CR, 04-12-00765-CR, 2-12-2014

Practice Areas: Criminal Law

Tex. App. Dist. 4

Hill Country San Antonio Management Services, Inc. v. Trejo

The appellee asserted the appellant breached the standard of care applicable to an adult day-care facility by failing to monitor or assist a person as he exited a van after a facility outing. The injuries occurred outside the facility and were not a result of a breach of medical, health care or safety standards. The claims are not health care liability claims. The trial court's order that denied the appellant's motion to dismiss is affirmed. San Antonio Court of Appeals, No. 04-13-00559-CV, 02-12-2014

Practice Areas: Health Law

Tex. App. Dist. 5

Lawyers Title Co. v. J.G. Cooper Development, Inc.

A title company appeals the summary judgment granted to a real estate investment and development company on the investment company's claims of conversion, bailment, and money had and received. The summary-judgment evidence raises a genuine issue of material fact regarding whether the title company exercised control of both the escrow account and $1.8 million that was wired into the account. The summary judgment grant to the investment company is reversed and remanded, and the judgment is otherwise affirmed. Dallas Court of Appeals, No. 05-11-01537-CV, 02-10-2014

Practice Areas: Torts

Tex. App. Dist. 6

Jackson v. State

The appellant was convicted of alleged murder. Forced entry is not an element of burglary; rather, burglary requires entry to be made without the effective consent of the owner. In a capital murder prosecution, the evidence need only be sufficient to establish one of the underlying felonies in the indictment. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00077-CR, 02-04-2014

Practice Areas: Criminal Law

Tex. App. Dist. 6

Hutchison v. State

The appellant appeals his conviction. While partial corroboration of a statement excuses the lack of a writing or recording, that corroboration does not provide an exception to the Miranda warnings codified in Texas Code of Criminal Procedure article 38.22 §2(a). Custodial interrogation includes express questioning of a suspect as well as words or actions by police that the police should know are reasonably likely to elicit an incriminating response. The trial court's judgment is reversed and remanded. Texarkana Court of Appeals, No. 06-13-00035-CR, 02-05-2014

Practice Areas: Criminal Law

Tex. App. Dist. 6

State v. Chesnut

The state appeals the dismissal of an indictment pursuant to the Interstate Agreement on Detainer's Act, arguing the appellee was not entitled to the dismissal because the warden of the Oregon prison failed to ensure that the request for final disposition was received by the court. When a prisoner complies with his or her obligations under the IADA, and the prosecuting office actually receives notice of that prisoner's proper request for final disposition along with all the required documentation, the 180-day period for bringing the prisoner to trial commences on the date of receipt by the prosecuting office. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00107-CR, 02-12-2014

Practice Areas: Criminal Law

Tex. App. Dist. 7

Republic Power Partners, L.P. v. City of Lubbock

The appellant challenges the trial court's order granting the plea to the jurisdiction filed by a city. Immunity applies to claims arising from the breach of an express contract arising out of the performance of a proprietary function. The city did not enter into the underlying agreement and no one executed it on behalf of the city, therefore Texas Local Government Code §271.152 does not apply to the facts of this case. The trial court's order is affirmed. Amarillo Court of Appeals, No. 07-12-00438-CV, 02-05-2014

Practice Areas: Contracts

Tex. App. Dist. 7

Keener v. State

The appellant challenges her conviction by jury for the alleged offense of criminally negligent injury to a child. A jury charge allowing the jury to find the appellant guilty of criminal negligence by omission was erroneous and caused the appellant egregious harm. The trial court's judgment is reversed and remanded. Amarillo Court of Appeals, No. 07-12-00424-CR, 02-11-2014

Practice Areas: Criminal Law

Tex. App. Dist. 7

In re M.Y.G.

The appellants appeal an order terminating their respective parental rights to the children. The law does not require that a child suffer actual injury; rather, it is enough when the parental conduct produces an endangering environment. The trial court's judgment is affirmed. Amarillo Court of Appeals, No. 07-13-00298-CV, 01-31-2014

Practice Areas: Family Law

Tex. App. Dist. 7

West Texas Municipal Power Agency v. Republic Power Partners, L.P.

The appellant, a municipal power agency, appeals the denial of its plea to the jurisdiction. The proprietary/governmental distinction employed in the Texas Tort Claims Act does not apply to contract disputes. Because the agency sought and received planning and development services clearly intended to benefit the agency and its member cities, the underlying agreement provides for the delivery of goods or services to a local governmental entity and Texas Local Government Code §271.152 waives immunity from suit. The trial court's order is affirmed. Amarillo Court of Appeals, No. 07-12-00374-CV, 02-05-2014

Practice Areas: Contracts

Tex.Crim.App.

State v. Swearingen, AP-77

The state appeals the decision of the trial court to grant the appellee's fourth Texas Code of Criminal Procedure article 64 motion for DNA testing. The appellee argues that "exculpatory result" means DNA results that are not from the convicted person and which generate a hit in the Combined DNA Index System. The statute requires only that the results be run through CODIS. It does not set a standard for exculpatory results. The trial court's order is reversed and remanded. Texas Court of Criminal Appeals, No. AP-77, 020, 02-05-2014

Practice Areas: Criminal Law

Tx. Sup. Ct.

Finance Commission of Texas v. Norwood

This is a supplemental opinion on motion for rehearing. Per diem interest is still interest, though prepaid; it is calculated by applying a rate to principal over a period of time. Legitimate discount points to lower the loan interest rate, in effect, substitute for interest. True discount points are not fees "necessary to originate, evaluate, maintain, record, insure, or service" but are an option available to the borrower and thus not subject to the 3% cap. Texas Constitution Article Article XVI §50(a)(6)(N) precludes a borrower from closing the loan through an attorney-in-fact under a power of attorney not itself executed at one of the three prescribed locations. The motion is denied. Texas Supreme Court, No. 10-0121, 01-24-2014

Tex. App. Dist. 8

Neal Autoplex, Inc. v. Franklin

A car dealer appeals from a judgment awarding damages for a cash price violation. Even assuming the appellees were fully aware of and agreed to the increased price, the cash price of the vehicle is not defined as the price ultimately agreed upon or stated in the contract. Rather, the cash price is the price the appellant offered to all customers in the ordinary course of business to all customers. The appellant points to no evidence demonstrating that the price offered to customers in the ordinary course of business was anything over the sticker price. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-12-00136-CV, 02-05-2014

Practice Areas: Commercial Law

Tex. App. Dist. 8

Richardson v. Richardson

The appellant challenges the trial court's calculation of community reimbursement. The appellant did not characterize a mobile home, purchased prior to marriage, or the debt thereon as being the parties' separate property or debt, nor did he plead a separate property claim. The appellant filed four signed and sworn inventory and appraisement documents with the court, each listing the mobile home as community property and the debt associated with it as a community liability. A party's sworn inventory is simply another form of testimony. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-12-00076-CV, 02-05-2014

Practice Areas: Family Law

Tex. App. Dist. 14

Kamat v. Prakash

Former employers of the plaintiff challenge the award of damages for conduct that occurred more than two years before the plaintiff filed her Fair Labor Standards Act suit. The plaintiff, a citizen of India, was employed as a live-in nanny. The evidence is sufficient to support the jury's finding that the employers are equitably estopped from relying on the statute of limitations to bar any part of the plaintiff's FLSA claims. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-11-00661-CV, 14-11-00662-CV, 01-28-2014

Practice Areas: Labor and Employment

Tex. App. Dist. 14

Ortiz v. State

The trial court denied appellant's motion to suppress out-of-court statements he made to a police officer before he was administered Miranda warnings. An officer's testimony was the only evidence adduced at the suppression hearing. It would have been reasonable to conclude that the appellant was initially handcuffed to temporarily detain him for officer safety while the cause of the disturbance report was ascertained. There is no evidence the officer used any force on appellant beyond the application of the handcuffs, and the period of time between his use of the handcuffs and appellant's statements was mere seconds. Lastly, the officer indicated to appellant that appellant was not under arrest at that time but was only being detained until the officers could figure out what had happened. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-00726-CR, 01-28-2014

Practice Areas: Criminal Law

Tex. App. Dist. 14

Shaw v. State

The appellant challenges his conviction for alleged murder. The trial court denied the appellant's request to cross-examine a medical examiner regarding the m.e.'s placement on pretrial diversion. The m.e.'s testimony at trial in no way deviated from her written report, which was prepared well before she was charged with an alleged felony offense or placed on pretrial diversion. Had appellant requested an extraneous offense instruction, the trial court would not have erred in denying his request because giving such an instruction is a useless act if no unadjudicated offenses have been introduced. The trial court erred in entering a specific dollar amount without any support in the record for that dollar amount. The trial court's judgment is affirmed as modified to delete the assessment of specific court costs. Houston's 14th Court of Appeals, No. 14-12-00876-CR, 01-23-2014

Practice Areas: Criminal Law

Tex. App. Dist. 14

Mutual of Omaha Life Insurance Co. v. Costello

An insurer appeals from a summary judgment in favor of a beneficiary on his claims of breach of contract seeking benefits under a life insurance policy. The insurer was not foreclosed from challenging the policy's validity because the insured died during the contestability period. When Texas Insurance Code §1101.006 is read in conjunction with Texas Administrative Code §3.104, the governing language prohibits policy provisions extending the contestable period of a policy other than provisions consistent with §1101.006. The trial court's judgment and orders are reversed and remanded. Houston's 14th Court of Appeals, No. 14-13-00050-CV, 01-23-2014

Practice Areas: Insurance Law

Tex. App. Dist. 14

In re S.A.H.

In a child custody modification order, the trial court named the child's maternal great aunt as joint managing conservator. Even if a parental presumption applied, the trial court did not err in granting certain rights to the great aunt under other unchallenged sections of the Texas Family Code, therefore, a constitutional challenge to Texas Family Code §156.101 is not resolved. The evidence supports the finding that the mother allegedly voluntarily relinquished care, control and possession of the child to the great aunt. A parent's living with a boyfriend or girlfriend, after having exposed a child to several different people in dating relationships, can support a finding that it is in a child's best interest not to visit with a parent while a non-relative boyfriend or girlfriend is present. The trial court's order is affirmed. Tex. App. Dist. 14, No. 14-12-00618-CV, 01-28-2014

Practice Areas: Family Law

Tex. App. Dist. 14

Johnson v. State

The appellant challenges his conviction of alleged capital murder. The evidence is sufficient to support appellant's conviction as a co-conspirator under Texas Penal Code §7.02(b) because the evidence supports a finding that appellant should have anticipated the possibility of a murder resulting from the course of committing robbery. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00114-CR, 01-28-2014

Practice Areas: Criminal Law

Tex. App. Dist. 14

Ex parte Castellanos

The appellant contends that bail set by the trial court is excessive. The trial court had before it evidence that appellant had allegedly engaged in extensive credit card fraud and theft by cloning hundreds of credit cards. The appellant is not a citizen of the United States and has family members in Cuba. Given the nature of the charged offenses and the aggravating circumstances, the trial court could have reasonably concluded a bond of $225, 000 for each count was necessary to deter appellant from fleeing the jurisdiction. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00538-CR, 14-13-00539-CR, 14-13-00540-CR, 01-23-2014

Practice Areas: Criminal Law

Tex. App. Dist. 14

Belt v. City of Houston

The trial court sustained a city's plea to the jurisdiction and dismissed the plaintiffs' ultra vires causes of action. The plaintiffs have met their affirmative pleading requirement with regard to their claim that an official exceeded his authority and discretion to impose a drainage charge on a property alleged to be not a "benefitted property" under the drainage fee ordinance. The trial court's order granting the plea to the jurisdiction is reversed, and the order is affirmed as to claims that the official acted ultra vires when determining the impervious square footage of their properties subject to drainage charges. Houston's 14th Court of Appeals, No. 14-13-00273-CV, 01-23-14

Tex. App. Dist. 14

Memorial Hermann Hospital System v. Galvan

A hospital appeals the trial court's denial of its motion to dismiss this non-patient slip-and-fall claim. Health care liability claims based upon alleged departures from accepted safety standards must involve an alleged departure from standards for protection from danger, harm, or loss, but need not involve an alleged departure from standards that involve health care or are directly or indirectly related to health care. The plaintiff's slip-and-fall claim is a claim based upon an alleged departure from accepted standards of safety and is a health care liability claim. The trial court's order is reversed and remanded with instructions. Houston's 14th Court of Appeals, No. 14-13-00120-CV, 01-28-2014

Practice Areas: Health Law

Tex. App. Dist. 2

In re D.D.G.

The appellant appeals the termination of her parental rights. When a child is born to a mother who allegedly used a controlled substance during her pregnancy and the child exhibits the demonstrable presence of a controlled substance in the bodily fluids after the birth, expert testimony is not required to establish that the child was born addicted to a controlled substance. The trial court's judgment is affirmed. Fort Worth Court of Appeals, No. 02-13-00307-CV, 01-23-2014

Practice Areas: Family Law

Tex. App. Dist. 2

In re PrairieSmarts LLC

The relator seeks a writ of mandamus directing the respondent to vacate an order granting the real party in interest's Texas Rule of Civil Procedure 202 order. A rule 202 petitioner seeking presuit discovery of information that has been proven to be trade secret information must satisfy both of the two distinct and separate burdens imposed under Texas Rule of Evidence 507 and under rule 202. The writ is conditionally granted. Fort Worth Court of Appeals, No. 02-13-00338-CV, 01-23-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 2

Stobaugh v. State

The appellant argues that the circumstantial evidence presented by the state at trial is insufficient to establish beyond a reasonable doubt that he acted with the requisite mens rea to commit the offense of murder. Without evidence that wrongful conduct has occurred, there is nothing for motive and opportunity evidence to link the defendant to. Because no evidence exists in the record that a murder has occurred, the utterance of false statements or inconsistent statements does not, by itself, create an inference that a murder or any wrongful conduct has occurred. The trial court's judgment is reversed and an acquittal is rendered. Fort Worth Court of Appeals, No. 02-11-00157-CR, 01-23-2014

Practice Areas: Criminal Law

Tex. App. Dist. 2

Weatherford Texas Hospital Co., L.L.C. v. Smart

The trial court denied a hospital's motion to dismiss the plaintiff's tort claim. After visiting a patient in the hospital emergency room, the plaintiff slipped on a puddle of water in the hospital lobby and fell. There must be some connection, even indirect at best, between the safety claim and the provision of health care for the claim to fall under the Texas Medical Liability Act health care liability claim definition. The trial court's judgment is affirmed. No. 02-13-00063-CV, 01-23-2014

Practice Areas: Torts

Tex. App. Dist. 4

Bexar County Texas v. Deputy Sheriff's Association of Bexar County

This appeal arises from Bexar County's refusal to permit payroll deductions which it contends are not authorized by law. The trial court did not err when it granted the declaratory judgment in favor of the Deputy Sheriff's Association of Bexar County. Membership dues in Texas Local Government Code §155.001(a)(2) may include any amount paid in exchange for the status or benefits of membership, including different amounts associated with different tiers of membership. While it likely would not have been an abuse of discretion to deny fees to both parties, the trial court's decision to award fees to only one party was not an abuse of discretion. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-13-00316-CV, 01-22-2014

Practice Areas: Criminal Law

Tex. App. Dist. 2

Kirk v. State

The appellant argues that the state failed to disprove that he acted in self-defense and in defense of property. The jury was entitled to conclude that appellant's belief that deadly force was immediately necessary was unreasonable, given that a victim was shot in the back several times and the forensic evidence showed that the shots were fired at a downward trajectory. Photographs of objects found within the appellant's house, including photos of fake skulls, fake skeletons and a plastic manikin torso and head suspended by a noose around its neck, did not likely move the jury from acquittal to conviction. The trial court's judgment is affirmed. Fort Worth Court of Appeals, No. 02-12-00095-CR, 01-23-2014

Practice Areas: Criminal Law

Tex. App. Dist. 4

Schuhardt Consulting Profit Sharing Plan v. Double Knobs Mountain Ranch, Inc.

The appellants in their adverse possession claim contend an express easement violates the statute of frauds because it cannot be located with reasonable certainty, and the appellees waived their claim of easement by necessity. A high fence installed for the purpose of preventing deer from leaving the property does not conclusively establish adverse possession under the theory of "designed enclosure." The appellants' construction of a deer fence did not establish a claim of right. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-12-00841-CV, 01-22-2014

Tex. App. Dist. 4

Saenz v. State

The appellant challenges her convictions of alleged murder and alleged aggravated assault. The jury was not required to unanimously agree on the alternate theories of capital murder as alleged under subsections (A) and (B) of Texas Penal Code §19.03(a)(7). Where each predicate murder victim does not constitute a separate offense, the jury need not unanimously agree on that victim's identity. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-12-00238-CR, 01-22-2014

Practice Areas: Criminal Law

Tex. App. Dist. 5

Holmes v. Zurich American Insurance Co.

This case arises out of a workers' compensation carrier's denial of payment for spinal surgery. There was a dispute about whether the surgery repaired only the compensable injury and the appellants, the injured worker and healthcare providers, did not present this dispute to the Division of Workers' Compensation for medical dispute resolution. Because the DWC did not have the opportunity to determine whether the insurer was required to pay for the surgery, the appellants failed to exhaust their administrative remedies. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-11-01579-CV, 01-22-2014

Practice Areas: Labor and Employment

Tex. App. Dist. 5

In re Fisher & Paykel Appliances, Inc.

The relator filed this mandamus proceeding challenging the trial court's production order. The weight of authority does not favor recognition in Texas of a doctrine of selective waiver of privilege. Communications compiled expressly for the purpose of responding to a mandatory government reporting requirement should not be covered by the selective waiver doctrine because as to those documents, the party making the disclosure and the government agency are in an adverse relationship. The mere fact that in compiling a response to a regulatory inquiry or mandate an attorney selects and transmits documents to a regulator does not transform ordinary business documents into work product. The petition is denied. Dallas Court of Appeals, No. 05-13-01498-CV, 01-22-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 6

In re K.S.

A father appeals from an order terminating his parental rights. The father, who was in prison, was unable to participate during a portion of the trial because the telephone connection was lost. There may have been some trial strategy on the part of trial counsel in not re-establishing the telephonic connection with the father and having him testify. Even if error was shown, there is no evidence of harm. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00116-CV, 01-23-2014

Practice Areas: Family Law

Tex. App. Dist. 5

Medrano v. State

The appellant, a former justice of the peace, challenges his conviction of alleged illegal voting. The appellant was charged as a party to another person's illegal voting. Texas Election Code chapter 273 does not violate the separation of powers doctrine. The state was required to show that the person who allegedly voted illegally voted in an election knowing she was not a resident of the territory covered by the election for the office on which she desired to vote. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-12-00316-CR, 01-27-2014

Practice Areas: Election and Political Law

Tx. Sup. Ct.

Galveston Central Appraisal District v. TRQ Captain's Landing

This review concerns the ad valorem tax exemption available under Texas Tax Code §11.182 for property owned by a community housing development organization. Equitable title is sufficient to qualify for the exemption. The appraisal district's argument regarding timeliness was based on the mistaken position that an exemption must be based only on legal title. Under §11.436, the CHDO's application was timely. The trial court's judgment is affirmed. Texas Supreme Court, No. 07-0010, 01-17-2014

Practice Areas: Taxation

Tx. Sup. Ct.

In re K.N.D.

The court of appeals upheld the Department of Family and Protective Services' appointment as sole managing conservator but reversed the termination judgment and denied the department's petition for termination. In light of In re E.C.R., holding in part that "[w]hile subsection O requires removal under chapter 262 for abuse or neglect, those words are used broadly," the child was removed for abuse or neglect under Texas Family Code chapter 262. The court of appeals judgment is reversed and remanded. Texas Supreme Court, No. 13-0257, 01-17-2014

Practice Areas: Family Law

Tx. Sup. Ct.

Texas Coast Utilities Coalition v. Railroad Commission of Texas

A municipal coalition and state agencies petition for review of a decision upholding the authority of the Railroad Commission of Texas to adopt a cost of service adjustment. By granting the commission the authority to establish "rates, " and defining "rates" to include "practices" that affect a utility's compensation and charges, GURA expressly grants the commission authority to include a COSA clause in a gas utility's rate schedule. No. 12-0102, 01-17-2014

Practice Areas: Energy and Natural Resources

5th Cir.

United States v. Cortez-Rocha

The appellant argues that his prior conviction does not constitute a crime of violence under the sentencing guidelines. The parties agree that the conviction was under Texas Penal Code §22.02. The whole of the statute cannot be read to constitute a crime of violence. Because the appellant could be convicted under the Texas statute for causing serious bodily injury or for assaulting a peace officer absent proof he used physical force, his prior offense is not a crime of violence based on U.S.S.G. §2L1.2's use-of-force clause. 5th U.S. Circuit Court of Appeals, No. 13-40049, 01-15-2014

Practice Areas: Criminal Law

5th Cir.

City of Alexandria v. Brown

Attorneys and a Louisiana city cross appeal the district court's determination of the fees owed by the city to the attorneys. Under both Saucier analysis and quantum meruit analysis, a court must use the factors articulated by Louisiana Rule of Professional Conduct 1.5(a) to determine the contribution that a lawyer made to his client's case. Where there was only partial performance of a joint, indivisible obligation before default, recovery must be in quantum meruit. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-30823, 01-15-2014

Practice Areas: Legal Profession

Tex. App. Dist. 13

In re Casterline

The relator files for writ of mandamus contending that the trial court abused its discretion by granting a motion to reconsider and reopen an expedited foreclosure proceeding after it had already denied the application for expedited foreclosure. Texas Rule of Civil Procedure 736.8(c) expressly prohibits motions for rehearing, new trial, bill of review, or appeals, and in this case, the bank filed a "Motion to Reconsider and Reopen" which the trial court expressly granted by order. The nature of a motion is determined by its substance, not its title or caption. The writ of mandamus is conditionally granted. Corpus Christi Court of Appeals, No. 13-13-00708-CV, 01-15-2014

5th Cir.

United States v. Simpson

The appellants challenge their convictions and sentences for alleged participation in a wire and mail fraud conspiracy in the telecommunications industry. Given that the CAN-SPAM Act specifically targets and punishes only unprotected, intentionally misleading commercial speech, and thus excludes commercial speech that is not misleading and all political or charitable speech, it is not facially vague or overbroad. Even assuming that a domain name renewal can be a false registration under the 18 U.S.C. §3559(g), the government is required to prove that the name was used in the course of the conspiracy after it was allegedly fraudulently registered, as defined by §3559(g). The convictions are affirmed, except an appellant's conviction for false registration of a domain name, which is reversed, vacated, and remanded. 5th U.S. Circuit Court of Appeals, No. 12-10574, 01-15-2014

Practice Areas: Criminal Law

5th Cir.

Wellogix, Inc. v. Accenture, L.L.P.

The appellant challenges a jury verdict finding it had allegedly misappropriated trade secrets. Testimony about the meaning of certain terms, and the availability of the plaintiff's source code, was within an expert's experience, training or education. The ratio of punitive to compensatory damages in this case is $18.2 million to $26.2 million, or about 0.7:1, within the single-digit ratio likely to comport with the due process. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 11-20816, 01-15-2014

Practice Areas: Intellectual Property

Tex. App. Dist. 14

Adeshile v. Metropolitan Transit Authority of Harris County

Appellant challenged an adverse directed verdict in this suit alleging retaliation. Because the appellant did not obtain a reporter's record, it is assumed that the evidence presented at trial supported the trial court's judgment. The trial court's judgment is affirmed. Houston's 14th Court of Apeals, No. 14-12-00980-CV, 01-16-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 14

Caffe Ribs, Inc. v. State

The appellant challenges a jury verdict in this eminent domain proceeding for the state's whole taking of a 7.5214-acre parcel of land and improvements. Discounted cash flow analysis, also is known as income capitalization, is an accepted valuation approach in appropriate circumstances. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-00401-CV, 01-16-2014

Tex. App. Dist. 14

Dodd v. Savino

This is a substitute opinion in an appeal challenging a default judgment. The appellants were unable to establish the first Craddock element. Although counsel's emails were hacked, this incident does not establish that this excuse negates his alleged conscious indifference to the warnings from opposing counsel. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-00555-CV, 01-16-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 12

Key Energy Services, LLC v. Shelby County Appraisal District

The taxpayer appeals the appraisal district's valuations of two saltwater disposal wells. The trial court lacked jurisdiction concerning the 2007 tax year. The appraisal district provided adequate notice as to what was being taxed and properly categorized the wells as an estate or interest in land. The trial court's judgment is affirmed. Tyler Court of Appeals, No. 12-13-00075-CV, 01-15-2014

Practice Areas: Taxation

Tex. App. Dist. 14

Mitchell v. State

As a condition of community supervision, the appellant was ordered to attend a program that may specifically include polygraph and plethysmograph examinations. Though several courts have held these procedures are unreliable as items of evidence, the appellant failed to show the conditions do not have a reasonable relationship to the treatment of the accused. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00038-CR, 01-14-2014

Practice Areas: Criminal Law

Tex. App. Dist. 2

Morrison v. Campbell

The appellant challenges the trial court's denial of his motion for summary judgment on the claim for loss of use damages brought against him. Damages for loss of use are available in total loss cases when the insurer unreasonably delays payment of a claim. The denial of the motion for summary judgment is affirmed. Fort Worth Court of Appeals, No. 02-13-00174-CV, 01-16-2014

Practice Areas: Torts

Tex. App. Dist. 14

Walker v. Schion

The plaintiff in this defamation suit contends that the trial court erred in granting the defendant's motion to dismiss pursuant to the Citizens Participation Act. The abuse of discretion standard is applicable to review of a denial of a motion for discovery under the Citizens Participation Act. The appellant failed to challenge a ruling of the trial court that sustained the objections to an affidavit that allegedly established essential elements of the claim. The trial court's judgment is affirmed. No. 14-13-00236-CV, 01-14-2014

Practice Areas: Torts

Tex. App. Dist. 2

In re Wilson

The petitioner challenges a decision to withhold her name from a primary ballot. Relying on public voter registration records maintained by the Tarrant County Elections Office, the chair of the Tarrant County Democratic Party determined that the petitioner had not provided at least 250 signatures of registered voters within Precinct 8. The petition for writ of mandamus is denied. Fort Worth Court of Appeals, No. 02-14-00007-CV, 01-15-2014

Practice Areas: Election and Political Law

Tex. App. Dist. 5

Crisp Analytical Lab, L.L.C. v. Jakalam Properties, Ltd.

A jury found the appellant breached an oral agreement to make the appellee "whole" following an error the appellant allegedly made while testing for asbestos. The failure to specify a price does not necessarily render a contract so indefinite as to be unenforceable. How to determine the reasonableness of expenses or how the parties would settle a disagreement regarding the reasonableness of expenses are not essential terms. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-12-01311-CV, 01-13-14

Practice Areas: Contracts

Tex. App. Dist. 5

In re N.L.T.

The trial court terminated the appellant's parental rights, relying on a 25-year old default judgment as the sole substantive ground. The Department of Family and Protective Services' reliance on Texas Family Code §161.001(1)(M) as the sole ground for termination in this case is an unconstitutional retroactive application of the law as applied to the appellant. The decree of termination is reversed and remanded. No. 05-13-00692-CV, 05-13-00693-CV, 01-15-2014

Practice Areas: Family Law

Tex. App. Dist. 5

Schmidt v. Richardson

This is an interlocutory appeal from the trial court's granting of a temporary injunction enjoining the appellants from various acts, including attempting a foreclosure. The mortgage contains a condition precedent to the post-default possession-or-foreclosure remedies: the mortgagees must give notice by certified mail setting out the default, and allow a 10-day opportunity to cure the default. No such notice has been given, therefore harm is not imminent. The trial court's order is reversed and remanded. Dallas Court of Appeals, No. 05-13-00206-CV, 01-13-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 3

State of Texas Agencies & Institutions of Higher Education v. Railroad Commission of Texas

This is an appeal appeal from a district-court judgment in a suit for judicial review of the Texas Railroad Commission's final order in a gas-utility rate case. The Commission had a reasonable basis in the record for concluding that most costs of the system were related to installing and maintaining facilities sized to meet the peak needs of the regulated, non-interruptible, customers and that it was appropriate to credit revenue received from the competitive customer's use of the system's available excess off-peak capacity against the total revenue requirement assessed to the regulated customers in their cost-of-service-based rates rather than establish a separate "Other Revenue" rate class. The Commission had the authority to approve Rider Rev, an adjustment mechanism that effects no changes to the revenue requirement established in a full cost-of-service rate-making proceeding as provided by the Gas Utility Regulatory Act. The trial court's judgment is affirmed. Austin Court of Appeals, No. 03-13-00018-CV, 01-17-2014

Practice Areas: Energy and Natural Resources

Tex. App. Dist. 6

Estate of Fisher

Appellants challenge the trial court's grant of partial summary judgment finding no evidence of undue influence in this will contest. The appellants filed an accelerated permissive appeal pursuant to Texas Civil Practice and Remedies Code §51.014(d). The trial court's finding is essentially one of fact, and judicial economy will not be served if permissive appeal is allowed at this stage. The appeal is dismissed for want of jurisdiction. Texarkana Court of Appeals, No. 06-13-00106-CV, 01-15-2014

Practice Areas: Trusts and Estates

Tex. App. Dist. 6

In re Lumbermen's Underwriting Alliance

An insurer petitions for mandamus to either compel the opposing party to produce documents or to require the trial court to compel the production of a privilege log and then to conduct an in-camera inspection of the withheld documents. There is no evidence that all of the 6, 000 withheld documents are privileged communications or documents from, to, or by a lawyer or lawyer's representative. Many of the requested items involved communications and documents not involving lawyers or their representatives. The trial court abused its discretion in not requiring the production of a privilege log so that the claim of privilege could be properly assessed. The writ of mandamus is conditionally granted, and the trial court's order is vacated. Texarkana Court of Appeals, No. 06-13-00108-CV, 01-16-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 8

Mullendore v. Muehlstein

The appellant challenges a judgment awarding him $30, 000 in damages following a jury trial in a prescriptive easement and temporary loss of use of land case. In a temporary loss of use of land case, loss of rentals continues to be but one of several measures of damages available, and the measure ultimately employed should be tailored to the specific circumstances of the case. Out of pocket expenses and loss of profits can be appropriately recovered as compensation for temporary loss of land use. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-12-00140-CV, 01-15-2014

5th Cir.

Vantage Drilling Co. v. Su

A foreign corporation appeals the district court's denial of its motion to remand in this suit against a director of the corporation on various state law claims. Diversity jurisdiction under 28 U.S.C. §1332(a)(2) may not be invoked in a suit between an alien and an alien corporation with its principal place of business in a state of the United States. The discussion in Chick Kam Choo concerning the remote risk of bias to the defendant was an alternative ground and not a holding. The district court's denial is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 13-20379, 01-07-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 8

J.C. General Contractors v. Chavez

The appellant was found negligent and liable as a nonsubscriber to workers' compensation insurance under Texas Labor Code section 406.033. The appellant did not invite error by requesting the same jury question the trial court ultimately submitted. Appellant made the same arguments requesting the change in language of the charge question in his memorandum and at the charge conference that he now brings on appeal. However, error is waived by inadequate briefing. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-12-00012-CV, 01-15-2014

Practice Areas: Labor and Employment

5th Cir.

United States v. Keele

The appellant challenges the district court's restitution order, arguing that it was not encompassed by his appeal waiver. The record supports the conclusion that the appellant's valid appeal waiver barred his right to appeal the restitution order - specifically, the plea agreement and the appeal waiver, the PSR, the district court's statements to the appellant at sentencing and rearraignment, and the appellant's statements at sentencing. The appeal is dismissed. 5th U.S. Circuit Court of Appeals, No. 12-10551, 01-07-2014

5th Cir.

In re Moore

The district court dismissed this adversary proceeding after finding that the appellant had continued to pay the trustee's attorneys' fees after the two had become adverse over the issue of whether to settle. The bankruptcy court had authority to enter final judgment because the appellant's state-law claims would necessarily be resolved in the claims allowance process. because the bankruptcy court failed to find by clear and convincing evidence that Cadle acted in bad faith, it erred in invoking its inherent sanction power. The bankruptcy court's order is reversed, vacated, and remanded. 5th U.S. Circuit Court of Appeals, No. 13-10325, 01-09-2014

Practice Areas: Bankruptcy

Tex. App. Dist. 8

Rivera v. Hernandez

The appellant alleges that the trial court mischaracterized his separate property as community property and divested him of his interest in the real estate. There is no cognizable judicial admission when 1. a litigant pleads separate property; 2. a litigant tenders requests for admission related to a claim for separate property; 3. a litigant discloses during discovery the documentary evidence to support the claim of separate property; 4. the party opposite files responsive pleadings concerning economic contribution and equitable reimbursement demonstrating a recognition of a separate property claim; 5. the litigant seeks leave of court to amend an inventory to correct an error; 6. the trial court grants leave to amend an inventory; and 7. there is no objection to the admission of contradictory evidence. It is unnecessary to show harm because divestiture of separate property is reversible error. The trial court's judgment is reversed and remanded. El Paso Court of Appeals, No. 08-11-00287-CV, 01-15-2014

Practice Areas: Family Law

5th Cir.

Brumfield v. Cain

The district court found that a habeas petitioner was mentally retarded and therefore ineligible for execution. The state of Louisiana appeals.The district court erred in its determination that the state court decision was not entitled to AEDPA deference. The state is not required to provide expert funds to the petitioner to make out a prima facie case. the strictures of procedural due process associated with Ford and Panetti attach only after a prisoner has made a "substantial threshold showing." The state court did not violate 28 U.S.C. §2254(d)(1). The district court's grant of habeas relief is reversed. 5th U.S. Circuit Court of Appeals, No. 12-30256, 01-08-2014

Practice Areas: Criminal Law

5th Cir.

Energy Management Services, LLC v. City of Alexandria

The appellant challenges the district court's denial of its motion to remand its suit to the state court from which it was removed. The district court denied the appellant's motion to remand on the ground that it possessed supplemental jurisdiction over the appellant's claims against the city of Alexandria because the appellant's subsequent lawsuit was "factually interdependent" with a previous claim, City v. CLECO. The settled and dismissed City v. CLECO claims may not serve as an anchor claim to support supplemental jurisdiction over the present suit; and the court's retention of jurisdiction over the post-settlement matters likewise do not support supplemental jurisdiction over the appellant's state-law breach-of-contract claims, given that the claims were not asserted in the same proceedings as the City v. CLECO. The district court's denial is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 12-31184, 01-09-2014

Practice Areas: Appellate Law - Civil

5th Cir.

United States v. Guzman

The appellant was convicted, following a stipulated bench trial, of being a felon in possession of a firearm. Whether consent is voluntary following an officer's alleged misrepresentation is a question of fact. The question whether a subsequent admission is sufficiently an act of free will to purge the primary taint similarly involves an evaluation of the record. The conviction and sentence are vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 12-11279, 01-07-2014

Practice Areas: Criminal Law

5th Cir.

United States v. Ramos

The appellant appeals the judgment and sentence regarding his conviction for alleged offenses related to material involving the sexual exploitation of children. Under the specific facts here, where the sadistic-conduct enhancement already covered the vulnerability of bondage, counting it again in the form of a vulnerable-victim enhancement was impermissible. Procedural sentencing errors are harmless if the government shows that the district court would have imposed a sentence outside the correct U.S. Sentencing Guidelines range for the same reasons it gave for imposing a sentence outside the miscalculated Guidelines range, and the government shows that the sentence imposed was not influenced by the erroneous Guideline calculation. The sentence is affirmed. 5th U.S. Circuit Court of Appeals, No. 11-51232, 01-09-2014

Practice Areas: Criminal Law

Tex. App. Dist. 1

Bliss & Glennon Inc. v. Ashley

This is an appeal from the trial court's order certifying a nationwide class in this case alleging damages due to alleged data theft. Because the individual plaintiff/appellant pleads a specific, redressable harm, cases concluding that persons seeking class certification without alleging a sufficient and particularized harm to demonstrate individual standing are inopposite. The trial court's determination that an obligation to give notice under Texas Business and Commerce Code §521.053 equates to an obligation to give Class Notice under Texas Rule of Civil Procedure 42 was erroneous. There is no evidence of typicality, commonality, or that the individual plaintiff could adequately protect the class. The certification order is reversed and remanded. Houston's 1st Court of Appeals, No. 01-12-01177-CV, 01-07-2014

Practice Areas: Appellate Law - Civil

5th Cir.

United States v. Imo

The appellants challenge their conviction for their alleged involvement in a health care fraud scheme. Although it would have been preferable for the district court to provide a cautionary instruction to the jury on the permissible purpose of the alleged Medicare and Medicaid violations, the district court did not abuse its discretion in refusing to give the requested limiting instruction. The prosecution is permitted to cross-examine defendants on alleged fraudulent acts because they are indicative of the defendant's character for truthfulness. The convictions and sentences are affirmed. No. 11-20791, 01-07-2014

Practice Areas: Criminal Law

Tex. App. Dist. 1

Windwood Presbyterian Church, Inc. v. Presbyterian Church

This case involves a property dispute between a local church and its parent denominational church. Because the denominational church's summary judgment motion was strictly based on hierarchical deference, a neutral principles analysis is not performed by the appellate court. Masterson's application is not limited to cases involving a schism. The trial court's judgment is reversed and remanded. Houston's 1st Court of Appeals, No. 01-10-00861-CV, 01-07-2014

5th Cir.

In re Berman-Smith

The plaintiffs in this adversary proceeding attempt to appeal the district court's judgment regarding their suit against a former business partner and his wife and co-debtor. Since the statute defining jurisdiction over bankruptcy appeals, 28 U.S.C. §158, expressly requires that the notice of appeal be filed under the time limit provided in Bankruptcy Rule 8002, the time limit is jurisdictional. The failure to file a timely notice of appeal in the district court leaves the district court and the appellate court without jurisdiction to hear the appeal. The appeal is dismissed, the district court's decision is vacated and remanded with instructions to dismiss. 5th U.S. Circuit, No. 13-50154, 12-16-2013

Practice Areas: Bankruptcy

Tex. App. Dist. 10

Brumbalow v. State

The appellant was convicted of alleged aggravated assault against a public servant. The offense of misdemeanor resisting arrest is not a lesser-included offense of the charged offense of aggravated assault against a public servant. Stepping forward while making eye contact and holding a knife carries the implied threat to kill or cause serious injury. The trial court's judgment is affirmed. Waco Court of Appeals, No. 10-11-00427-CR, 01-09-2014

Practice Areas: Criminal Law

Tex. App. Dist. 10

Luna v. Texas Department of Family and Protective Services

The appellant challenges the trial court's dismissal with prejudice of a bill of review alleging that her voluntary relinquishment of parental rights was obtained by fraud. Because she filed the suit more than six months after the order of termination is signed, the suit is barred by Texas Family Code §161.211. The trial court's order is affirmed. Waco Court of Appeals, No. 10-12-00482-CV, 01-09-2014

Practice Areas: Family Law

Tex. App. Dist. 4

Lower Colorado River Authority v. City of Boerne

The Lower Colorado River Authority, a political subdivision of the state, appeals the portion of the trial court's order granting the city of Boerne's plea to the jurisdiction, thereby immunizing the city from LCRA's suit for declaratory relief. Because the provision of electrical power to the city's residents is a proprietary function, LCRA contends that the city has no immunity against LCRA's suit arising out of the Wholesale Power Agreements. In view of Texas Local Government Code §271.152's statutory waiver for certain breach of contract claims against governmental entities, there is no proprietary-governmental dichotomy to contractual or quasi-contractual claims. The trial court's order is affirmed. San Antonio Court of Appeals, No. 04-13-00108-CV, 01-08-2014

Tex. App. Dist. 2

Lawrence v. State

The appellant challenges the revocation of his deferred adjudication community supervision. Nothing in the modifying phrase "as directed by the court or supervision officer" was intended to limit the immediately preceding phrase, "no fewer than 10 hours per month"; instead, a logical reading of the condition in its entirety indicates that appellant was expected to perform no less than 10 hours each month and that those 10 hours would also need to be completed at the direction of the court or supervision officer. The judgment is affirmed as modified to delete language regarding fees. Fort Worth Court of Appeals, No. 02-13-00021-CR, 01-02-2014

Practice Areas: Criminal Law

Tex. App. Dist. 14

Dearborn v. State

The appellant argues that he was egregiously harmed by the trial court's alleged failure to apply the law of justification as a defense to the charges against him. A justification defense was not fairly raised by the evidence in this case and, to the extent it was, the trial court presumptively considered and rejected it. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-00735-CR, 14-12-00736-CR, 01-07-2014

Practice Areas: Criminal Law

Tex. App. Dist. 14

In re Platinum Energy Solutions, Inc.

An oil field services provider petitions for writ of mandamus challenging the trial court's denial of its motion for protective order and its grant of a motion to compel in the underlying derivative shareholder suit. Texas Business Organizations Code §21.556 controls over §21.562(a) in this specific context involving the scope of permissible discovery in connection with a foreign corporation's motion to dismiss a derivative action. The trial court acted beyond its discretion insofar as it required production of the 43 categories of documents at issue to occur based on a determination that §21.562(a) governs this inquiry. The writ of mandamus is conditionally granted. Houston's 14th Court of Appeals, No. 14-13-00681-CV, 01-02-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 4

Ex parte Baldez

The appellant challenges the trial court's denial of his post-conviction application for writ of habeas corpus. The application was made pursuant to Texas Code of Criminal Procedure article 11.072 regarding misdemeanor convictions. The trial court's order did not find the application "frivolous," but failed to include findings of fact and conclusions of law. The appeal is abated for the trial court to clarify its order. San Antonio Court of Appeals, No. 04-13-00494-CR, 01-08-2014

Practice Areas: Criminal Law

Tex. App. Dist. 5

Wells Fargo Bank, N.A. v. Leath

A bank appeals the judgment voiding the deed of trust lien on the appellee's homestead and ordering forfeiture of the principal and interest on the related home equity adjustable rate note. Although pleadings are not admissible in evidence to prove the facts alleged therein, the issue of notice concerns the effect of the allegations pleaded, not whether the allegations are true. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-11-01425-CV, 01-06-2014

Practice Areas: Banking and Financial Institutions

Tex. App. Dist. 5

Dallas County v. Logan

Dallas County asserts a single issue challenging the trial court's denial of its plea to the jurisdiction in a suit brought by the appellee under the Texas Whistleblower Act. An investigative firm hired by the county is not part of the state or local government merely because of its duty to report to the county. An appropriate law-enforcement authority must be actually responsible for regulating under or enforcing the law allegedly violated. The trial court's denial is reversed and remanded. Dallas Court of Appeals, No. 05-11-00480-CV, 1-09-2013

Practice Areas: Labor and Employment

Tex. App. Dist. 5

Rico v. L-3 Communications Corporation

The appellant challenges an adverse summary judgment on his claims for alleged intentional infliction of emotional distress and alleged malicious prosecution. There is an initial presumption that the defendant acted reasonably and in good faith and had probable cause to initiate criminal proceedings. In order to rebut this presumption, the plaintiff must produce evidence that the motives, grounds, beliefs, or other information upon which the defendant acted did not constitute probable cause. There is no evidence that the report to the police was made with knowledge that the appellant was innocent, therefore there is no evidence that the conduct was extreme or outrageous. The trial court's summary judgment is affirmed. Dallas Court of Appeals, No. 05-12-01099-CV, 1-10-2013

Practice Areas: Torts

5th Cir.

Bell v. Thornburg

A former employee of the standing bankruptcy trustee for the Western District of Louisiana filed suit in state court alleging that she had been terminated in violation of the Louisiana Employment Discrimination Law. The district court granted summary judgment to the employer. A standing trustee "act[s] under" officers of the United States and fall within 28 U.S.C. §1442(a)(1)'s purview. The trustee has averred a colorable federal defense and was entitled to remove this case under the federal officer removal statute. The trustee has not employed the requisite number of people to qualify as an "employer" under the LEDL. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-30155, 12-30-2013

Practice Areas: Labor and Employment

Tex. App. Dist. 9

Blasdell v. State

The trial court excluded the testimony of a forensic psychologist concerning witness identifications that occur during crimes that involved guns. whether a gun is a distraction during a brief encounter does not appear to be a question far removed from what the jury would likely expect based on their common experience; thus, the focus on the witness's qualifications with respect to this topic are less important than whether the testimony is reliable. While the expert described the weapon focus effect, he did not describe the principles that apply to it. The trial court's judgment is affirmed. Beaumont Court of Appeals, No. 09-09-00286-CR, 01-08-2014

Practice Areas: Criminal Law

Tex. App. Dist. 6

Brooks v. State

The appellant challenges his conviction as a party to capital murder. When a juror obtains information about a case, a number of factors are involved in looking for harm, such as the nature of admonishments to the juror, the jurors statements about whether the articles involved would impact their deliberations, whether the jurors stated that they could disregard the articles, whether the articles contained information other than that which would be presented at trial, and whether the juror stated that she would follow the court's direction to decide the case based solely on the evidence. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00088-CR, 01-02-2014

Practice Areas: Criminal Law

Tex. App. Dist. 6

Reeder v. State

The appellant challenges a warrantless blood seizure. Because the appellant's blood specimen was obtained in compliance with Texas Transportation Code §724.012(b)(3)(B), a warrant was not required. The trial court's judgment is affirmed as modified to reflect the proper statutory references. Texarkana Court of Appeals, No. 06-13-00126-CR, 01-08-2014

Practice Areas: Criminal Law

Tex. App. Dist. 14

Hightower, Russo & Capellan v. Ireson, Weizel & Hightower, P.C.

A firm appeals the trial court's apportionment of fees between itself and a predecessor firm. The total fee was not based on the amount of work necessary to prosecute client's case; instead, it was a contingency fee set by contract as a defined percentage of the client's total recovery. The trial court rationally concluded the reasonable value of each firm's services to client should be calculated by applying the defined percentage to the portion of the settlement funds attributable to each firm's work. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-00685-CV, 12-31-2013

Practice Areas: Appellate Law - Civil

5th Cir.

Venable v. Louisiana Workers' Compensation Corp.

The appellants challenge a summary judgment in favor of the Louisiana Workers' Compensation Corporation, which cross-appeals the denial of its motion to dismiss for want of subject-matter jurisdiction. Even assuming arguendo the district court was correct that the issue of waiver under 33 U.S.C. §933 raises a substantial federal issue, the well-pleaded-complaint rule forecloses federal-question jurisdiction. The district court lacked jurisdiction under diversity or admiralty. A district court cannot exercise ancillary jurisdiction to compel a third party's consent to a proposed, but not final, settlement agreement. The district court's summary judgment is reversed and rendered. 5th U.S. Circuit Court of Appeals, No. 12-30965, 12-30-2013

Practice Areas: Appellate Law - Civil

5th Cir.

In re Energytec, Inc.

Energytec, Inc. owns and operates gas pipelines. The company filed for bankruptcy relief under Chapter 11. The bankruptcy court authorized a sale of a pipeline system to Red Water Resources Inc., but reserved for later determination whether the sale was free and clear of the appellant, Newco Energy's, right to certain fees and other interests in the pipeline. Over a year after the sale, the bankruptcy court ruled that Newco's rights were not covenants running with the land and that the sale of the pipeline system was free and clear of Newco's interests. 11 U.S.C. § 363(m) does not deprive the appellate court of jurisdiction. Newco's right to transportation fees and its right to consent to assignment are covenants running with the land. The judgment is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 12-41162, 12-31-2013

Practice Areas: Bankruptcy

5th Cir.

Jose v. Transmaritime, Inc.

The appellee was granted summary judgment on its claim for the loss of its goods in transit under the Carmack Amendment to the Interstate Commerce Act. Two Form 7512s do not carry the same weight as a bill of lading, and are insufficient to show delivery of the goods in good condition to the carrier. Further,because the forms had an "apparent good order" clause, such bills would likely be prima facie proof of delivery in good condition only as to those portions of the cargo which were open for inspection at the time of delivery. The appellee failed to establish the first element of its prima facie case under the Carmack Amendment: delivery of the goods in good condition to the carrier. The district court's summary judgment is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 13-40147, 12-30-2013

Practice Areas: Commercial Law

Tex. App. Dist. 14

In re BDPJ Houston, LLC

The relator challenges an order compelling the production of confidential settlement information. In the underlying suit, a company seeks compensation it's allegedly owed from the owner and manager of a building. The manager cross-claimed against the owner, alleging that the owner had recovered a settlement with an insurer. There is no basis for concluding that the location, amount, or expenditure of the settlement funds is relevant to a claim or defense in the underlying suit or is reasonably calculated to lead to the discovery of admissible evidence. The writ of mandamus is conditionally granted. Houston's 14th Court of Appeals, No. 14-13-00751-CV, 12-31-2013

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 4

City of Leon Valley Economic Development Corp. v. Little

The trial court denied the plea to the jurisdiction made by the appellant, the City of Leon Valley Economic Development Corporation. An EDC, like a private nonprofit corporation, is not inherently entitled to governmental immunity; Texas Local Government Code §505.106(a) raises an immunity from liability shield for non-tort claims arising from an EDC's "performance of a governmental function;" §505.106(b) statutorily invokes common-law governmental immunity, including both immunity from liability and immunity from suit, but only for tort claims. The trial court's order is affirmed. San Antonio Court of Appeals, No. 04-12-00142-CV, 12-31-2013

Tex. App. Dist. 3

Combs v. Newpark Resources, Inc.

The Comptroller of Public Accounts asserts that the trial court erred in concluding that the appellee was entitled to a tax refund because the appellee's subsidiary did not qualify for a cost-of-goods-sold deduction and the appellee was not entitled to exclude from its total revenue the subsidiary's payments to subcontractors. Each member's cost-of-goods-sold deduction must be determined by considering the member's expenses in the context of the combined group's overall business. Texas Tax Code §171.1012(i) means that the party that supplies labor or materials to the construction, improvement, remodeling, repair, or industrial maintenance of real property can deduct its labor or material expenses as a cost of goods sold, assuming those expenses would qualify as the cost of selling real property. The trial court could have reasonably concluded that the removal and disposal of waste material was labor furnished to a project for the construction and improvement of real property. The trial court's judgment is affirmed. Austin Court of Appeals, No. 03-12-00515-CV, 12-31-2013

Practice Areas: Taxation

Tex. App. Dist. 4

Graham v. Prochaska

The appellants and heirs of the grantees of a 1950 warranty deed contend the trial court misconstrued the warranty deed and seek to reverse the trial court's judgment that the appellee's are entitled to a "fixed" one-sixteenth royalty interest. The royalty interest reserved by the deed was a floating one-half royalty interest. In 1950, the appellees conveyed the entirety of their present interest to the grantees, but they excluded the possibilities of reverter to two floating one-quarter royalty interests contained in outstanding reservations from passing under the deed, and reserved those interests to themselves. Upon the termination of those prior interests, the appellees' future interests became present possessory interests. The appellees are entitled to one-tenth of production under the current lease and to one-half of whatever landowner's royalty may be negotiated under future leases. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-12-00755-CV, 12-13-2013

Tex. App. Dist. 6

Burden v. Burden

The appellant challenges an order declaring that she and a man she had divorced, but subsequently lived with, were not common-law married. The evidence pertaining to an agreement to be married was controverted. There was no direct evidence that these parties agreed to be married after the divorce was granted. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00024-CV, 12-31-2013

Practice Areas: Family Law

5th Cir.

Island Operating Co., Inc. v. Director, Office of Worker's Compensation Programs

This is a petition to review a modification of a benefits award under the Longshore and Harbor Workers' Compensation Act. LHWCA §22 mistakes of fact are not limited to newly discovered and previously unattainable evidence. The Benefits Review Board decision is affirmed. 5th U.S. Circuit, No. 12-60222, 12-20-2013

Practice Areas: Admiralty

Tex. App. Dist. 8

Bonacci v. Bonacci

The appellant contends the trial court was without jurisdiction to enter the final divorce decree on the appellee's petition for divorce filed in El Paso County because Appellant had first filed for divorce in Montgomery County. Despite filing a plea in abatement, appellant subsequently filed his counter-petition for divorce in the 388th District Court. Appellant also executed a Rule-11 agreement agreeing that venue for the divorce would be in El Paso County, participated in mediation, and executed a binding, irrevocable mediated settlement agreement that was filed with the 388th District Court. Moreover, by filing his cross-petition for divorce, wherein he prayed that the 388th District Court would grant him a divorce and other relief, the appellant submitted himself to the El Paso trial court's jurisdiction. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-11-00255-CV, 12-27-2013

Practice Areas: Family Law

Tex. App. Dist. 8

In re R.R.

Appellant challenges the trial court's finding that he engaged in delinquent conduct by allegedly possessing two ounces or less of marijuana. The state was not required to call an expert witness, offer the alleged substance or photos of it at the adjudication hearing, and present the chain of custody for the marijuana into evidence to prove that the substance was in fact marijuana. An officer's testimony that the marijuana was in a usable amount is sufficient to support the trial court's judgment. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-12-00284-CV, 12-27-2013

Practice Areas: Family Law , Juvenile Law

Tex. App. Dist. 1

Smith v. State

The appellant challenges his conviction of alleged murder and his punishment of confinement for 40 years. The trial court erred in admitting various disciplinary records that constituted hearsay and violated the appellant's right to confrontation. The appellant suffered harm from the error. The appellant's conviction is affirmed, the judgment of punishment is reversed and remanded. Houston's 1st Court of Appeals, No. 01-11-00898-CR, 12-19-2013

Practice Areas: Criminal Law

5th Cir.

Garza v. Stephens

The petitioner's federal habeas petition and certificate of appealability were denied by the district court. Petitioner seeks a COA to pursue his Strickland claims, arguing, in part, that because counsel did not ask what the jurors would do in a case exactly like this one, the jurors may not have been fair and impartial. The petitioner utterly fails to satisfy Strickland's second prong, relying solely on speculation. Moreover, no authority requires a defense attorney to ask specific questions at voir dire. The COA request is denied. 5th U.S. Circuit Court of Appeals, No. 12-70036, 12-20-2013

Practice Areas: Criminal Law

Tex. App. Dist. 1

In re Milton

Petitioner seeks mandamus relief to compel the trial court to vacate its orders denying her special appearance and motion to dismiss the underlying divorce proceeding and suit affecting the parent-child relationship. Amending a petition does not constitute a new suit for the purpose of determining a child's "home state" under the UCCJEA. The date for purposes of establishing subject-matter jurisdiction is the date of the first pleading, not the last. Because of the child custody and visitation issues, venue is appropriately reviewed by mandamus. Mandamus relief is conditionally granted, the case is abated and the trial judge who will preside over the case is directed to review challenged temporary orders. Houston's 1st Court of Appeals, No. 01-13-00240-CV, 12-19-2013

Practice Areas: Family Law

5th Cir.

United States v. Tuma

The appellant challenges his conviction of various alleged crimes related to his alleged involvement in disposing of untreated wastewater. The district court denied a request for the issuance of letters rogatory to depose a Canadian CEO because it did not find the need to depose the CEO exceptional as required by Federal Rule of Criminal Procedure 15(a). A conviction is constitutional and does not violate a defendant's right to compulsory process even when the court lacks the power to subpoena potential defense witnesses from foreign countries. There is no appellate jurisdiction to review the denial of a downward departure unless the district court's denial resulted from a mistaken belief that the Sentencing Guidelines do not give it authority to depart. The convictions and sentence are affirmed. 5th U.S. Circuit Court of Appeals, No. 12-31234, 12-23-2013

Practice Areas: Criminal Law

Tex. App. Dist. 12

Fantich v. State

The appellant challenges the denial of his pretrial application for writ of habeas corpus. Because the primary alleged crime of the aggravated assault in this case is an alleged misdemeanor, the limitation period for the aggravated assault alleged in the indictment is two years. The trial court's denial is reversed and the indictment is dismissed. Tyler Court of Appeals, No. 12-13-00011-CR, 12-20-2013

Practice Areas: Criminal Law

Tex. App. Dist. 12

State v. Johnson

The appellee was charged with the alleged offense of destruction of a flag. The state appeals the trial court's dismissal. Texas Penal Code §42.11 is not sufficiently narrow to prevent a chilling effect on the exercise of First Amendment freedoms as they relate to conduct involving the flag. Individuals intending to convey a message by engaging in one of the prohibited acts will nevertheless be subject to arrest and prosecution. The statute is unconstitutionally overbroad. The trial court's dismissal is affirmed. Tyler Court of Appeals, No. 12-12-00425-CR, 12-20-2013

Practice Areas: Criminal Law

Tex. App. Dist. 1

Paramount Credit, Inc. v. Montgomery

The appellant argues that a default judgment entered against it is void because of improper service. To support the default judgment, the officer's citation itself must affirmatively show the exercise of reasonable diligence. It is not clear from the record that one attempt at service constituted reasonable diligence. Additionally, the absence of a seal renders the original citation invalid, and the deputy's return does not bear the name of the case in which the citation was issued. Because the trial court lacked jurisdiction, the default judgment is reversed and remanded. Houston's 1st Court of Appeals, No. 01-12-00733-CV, 12-19-2013

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 1

Tarley v. State

The appellant challenges his conviction of the alleged assault of an individual with whom he had a dating relationship. Under the doctrine of forfeiture by wrongdoing, a defendant may not assert a confrontation right if his deliberate wrongdoing resulted in the unavailability of the declarant as a witness. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-11-00463-CR, 12-19-2013

Practice Areas: Criminal Law

Tex. App. Dist. 14

Lee v. State

The appellant argues that the trial court erred by allowing an autopsy report without providing an opportunity to cross-examine the medical examiner who prepared it. The improperly admitted autopsy report's conclusions were cumulative of properly admitted independent testimony drawn from the autopsy record. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-00615-CR, 12-19-2013

Practice Areas: Criminal Law

Tex. App. Dist. 14

Lyle v. State

The appellant challenges his conviction for allegedly driving while intoxicated. A police officer's testimony of a "report of a DWI" made to explain how the appellant became a suspect was not hearsay. The trial court's judicial notice of the element of "public place" weights in favor of finding egregious harm for failing to make a Texas Rule of Evidence 201 instruction, but because the "public place" element was supported by the evidence and not seriously contested, there was no egregious harm. The trial court's judgment is affirmed. Tex. App. Dist. 14, No. 14-12-00748-CR, 12-19-2013

Practice Areas: Criminal Law

Tex. App. Dist. 14

Sloan v. State

The appellant challenges his sentence of life imprisonment on the ground that a mandatory punishment of life imprisonment is unconstitutionally cruel and unusual. Except for fundamental error that appellant does not assert, an objection in the trial court is required to preserve error for appellate review; the "right not recognized" doctrine does not apply. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-00514-CR, 12-19-2013

Practice Areas: Criminal Law

Tex. App. Dist. 14

Vidal v. State

The appellant challenges his conviction for allegedly recklessly causing serious bodily injury to a child. A witness testified that the appellant allegedly said "[Y]ou better not say nothing or I'm going to finish you and the kids off." Any potential prejudice associated with the statement was cured by the trial court's instruction to disregard. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-00799-CR, 12-19-2013

Practice Areas: Criminal Law

Tex. App. Dist. 4

Springer Ranch, Ltd. v. Jones

This dispute concerns the allocation of royalties from a horizontal well located on two properties. The contract is construed as requiring royalties to be allocated on the basis of the productive portions of the well underlying the properties. Each party is entitled to royalties determined by the ratio of the productive portions of the well on their respective properties to the entire length of the well, multiplied by the one-eighth lease royalty. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-12-00554-CV, 12-20-2013

Practice Areas: Energy and Natural Resources

Tex. App. Dist. 2

Roots v. State

The appellant challenges his convictions for alleged assault against a member of his family or household and alleged aggravated assault with a deadly weapon. Because the indictment expressly alleged that he used or exhibited a deadly weapon, the deadly weapon finding was made as a matter of law when the appellant was convicted. Because the trial court had already found, upon entering the original judgment of conviction, that appellant had used or exhibited a deadly weapon in committing aggravated assault, the court did not err by later following Texas Code of Criminal Procedure art. 42.12 §3g(a)(2) and clerically entering that finding through a nunc pro tunc judgment. The trial court's judgments are affirmed. Fort Worth Court of Appeals, No. 02-12-00439-CR, 02-12-00440-CR, 12-19-2013

Practice Areas: Criminal Law

Tex. App. Dist. 4

In re Archer Directional Drilling Services LLC

The relator filed a petition for writ of mandamus complaining of the Dimmitt County District Court's order denying the relator's plea in abatement to allow an earlier filed Harris County suit to proceed under dominant jurisdiction. The Texas Deceptive Trade Practices Act does not preclude a party in receipt of a DTPA notice letter from filing suit for breach of contract during the 60-day waiting period, and such filing does not constitute inequitable conduct preventing dominant jurisdiction. The writ is conditionally granted. San Antonio Court of Appeals, No. 04-13-00692-CV, 12-20-2013

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 3

State v. Villarreal

The state petitions for mandamus seeking enforcement of a plea bargain. Based on the plain language of the plea bargain, the parties intended for the defendant to plead guilty to and be adjudicated for one count of alleged sexual assault of a child in exchange for the state's recommendation that the defendant get credit for time served and dismissal of the remaining two counts of alleged sexual assault of a child. The trial court failed to perform its ministerial duty to either enforce or reject the plea agreement without modification. The writ is conditionally granted. Austin Court of Appeals, No. 03-13-00423-CR, 03-13-00657-CV, 12-20-2013

Practice Areas: Criminal Law

Tex. App. Dist. 5

State v. Ojiaku

The state appeals the trial court's grant of a pretrial application for writ of habeas corpus and dismissal of the case with prejudice. The offense of bail jumping is not a continuing offense. The state's indictment of appellee for alleged bail jumping was filed after the limitations period had expired. The trial court's grant of relief and dismissal with prejudice is affirmed. Dallas Court of Appeals, No. 05-13-00840-CR, 12-23-2013

Practice Areas: Criminal Law

Tex. App. Dist. 5

In re L.T.H.

The appellant appeals the trial court's final judgment that she take nothing in her post-divorce enforcement suit. The agreement incident to divorce in this case is governed by contract law and not chapter 8 of the Texas Family Code. Pursuant to the terms of the agreement, the parties could modify the contractual obligation of spousal support by signing a written agreement. A court order was not necessary to achieve a valid modification. Because the Reformed California Divorce Decree and the MSA were founded upon settlement agreements reached by the parties, the trial court had no power to supply terms, provisions, or conditions not previously agreed upon by the parties. The trial court's judgment is reversed and remanded. Dallas Court of Appeals, No. 05-11-01707-CV, 12-18-2013

Practice Areas: Family Law

Tex. App. Dist. 5

Union Pacific Railroad Co. v. Stouffer

This is an appeal of the trial court's denial of a motion to transfer venue. Nothing in Texas Civil Practice and Remedies Code §15.003 suggests that §15.003(b)(1)'s interlocutory appeal is available only if different plaintiffs rely on different theories of proper venue. The trial court's order is reversed and remanded. Dallas Court of Appeals; No. 05-13-01224-CV, 12-19-2013

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 4

In re Farmers Texas County Mutual Inc. Co

The relator, an insurance company, filed a petition for writ of mandamus complaining of three orders signed by three different judges in the underlying suit for personal injury and underinsured motorist coverage. The conduct complained of in this instance, the late production of a recorded statement, is not the type of egregious conduct or exceptional case which clearly justifies death penalty sanctions. Further, the trial court failed to consider the appropriateness of lesser sanctions to promote compliance before imposing the death penalty sanctions. The writ is conditionally granted. San Antonio Court of Appeals, No. 04-13-00644-CV, 12-20-2013

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 8

Peterson, Goldman & Villani, Inc. v. Ancor Holdings, L.P.

The appellant, as owner of a guaranty, attempts to hold the appellees-a limited partnership and its members-liable for satisfaction of a judgment awarded against the limited liability company. Because the appellees allegedly profited in this action by asserting a position contrary to that asserted in a prior action in support of their argument that the appellant is not liable under the guaranty, they are judicially estopped from asserting limitations as an affirmative defense. The trial court's judgment in favor of the appellees on the declaratory judgment and contract claims are reversed and remanded, and otherwise affirmed. El Paso Court of Appeals, No. 08-12-00135-CV, 12-19-2013

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 8

Moreno v. Texas Department of Transportation

The appellant argues that the trial court erred in granting a directed verdict on his discrimination and due process claims and in excluding evidence of discrimination. By failing to introduce disciplinary records into evidence, the appellant failed to satisfy the first requirement of Texas Rule of Evidence 107. Absent express agreements addressing discharge protocols, statements about disciplinary procedures in an employee handbook or manual constitute no more than general guidelines and do not create contractual rights regarding those procedures. The trial court's judgment is affirmed. El Paso Court of Appeals; 08-12-00078-CV, 12-18-2013

Practice Areas: Labor and Employment

Tex. App. Dist. 8

Yardeni v. Torres

The appellants challenge a temporary injunction preventing them from locking the appellees out of a property. The appellants claim error predicated on the allegation that the appellees are not named as tenants in a lease to the property. However, there is enough evidence, if taken as true, to show a likelihood of success on other claims. Also, the trial court could have believed the appellee's testimony that there was a valid lease, or could have found that the appellee was a 50 percent owner of the property. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-13-00067-CV, 12-19-2013

Tex. App. Dist. 6

Dolph v. State

The appellant chose to represent himself for a portion of his trial during the guilt/innocence phase. The appellant's persistence in asserting his right of self-representation despite the court's admonishments was all that was required in order for the court to determine that the assertion was made purposefully. In a hybrid-representation case, the trial court's failure to give requested admonishments does not render involuntary the waiver of the right to counsel. The trial court's judgment is affirmed as reformed to delete the assessment of a fine. Texarkana Court of Appeals, No. 06-13-00029-CR, 12-20-2013

Practice Areas: Criminal Law

Tex. App. Dist. 8

City of El Paso v. Collins

A city appeals from an order denying its plea to the jurisdiction arising from a lawsuit involving injuries to a child at a city swimming pool. To the extent appellees' pleadings seek to impose liability on the city based solely on the responsible third party designation and without establishing a waiver of the city's immunity, the trial court erred by denying the city's plea to the jurisdiction. Complaints regarding alleged deficiencies in the pleadings and lack of notice do not constitute a challenge to the trial court's subject matter jurisdiction and are not addressed. The denial of the plea as it applies to the responsible third party claim is reversed and rendered, as the denial applies to the premises liability claim it is remanded, and the denial is affirmed as to the negligence claim. El Paso Court of Appeals, No. 08-12-00243-CV, 12-18-2013.

Practice Areas: Torts

Tex. App. Dist. 8

Salazar v. Sanders

This is a dispute between two neighbors over flooding on their properties. The plaintiff appeals a take-nothing judgment on his private nuisance, interference with lateral support, and water code claims. An instruction that permitted the jury to find that a person who engaged in an intentional entry onto land did not trespass unless he entered with intent to trespass was erroneous, but did not cause harm. The trial court's take-nothing judgment is affirmed. El Paso Court of Appeals, No. 08-11-00335-CV, 12-18-2013.

Practice Areas: Torts

5th Cir.

Daigre v. City of Waveland, Mississippi

In this case alleging excessive force and false arrest, the plaintiff appeals the district court's dismissal of her claims under the favorable termination rule set forth in Heck v. Humphrey. Regarding excessive force, broad claims of innocence relating to the entire arrest encounter, and not merely to a discrete part of it, are barred by Heck. A false-arrest claim is Heck-barred where the plaintiff would have to attack one of the grounds for the arrest leading to a conviction. The district court's summary judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-60863, 12-18-2013.

Practice Areas: Civil Rights

5th Cir.

Tercero v. Stephens

The petitioner seeks a certificate of appealability challenging his Texas capital sentence. The petitioner never requested an evidentiary hearing in the state court, and, in any event, had already substantially developed his claim in the district court prior to remand. The state habeas courts gave the petitioner the opportunity to be heard, and their adjudication warrants AEDPA deference. The district court's determination was reasonable that the evidence supporting a new birthdate urged by the petitioner in his Roper claim was unpersuasive. The application is denied. 5th U.S. Circuit Court of Appeals, No. 13-70010, 12-18-2013.

Practice Areas: Criminal Law

5th Cir.

Imperial Ed Promotions, L.L.C. v. Pacquiao

During discovery, the plaintiff produced an assignment purporting to transfer an interest in the production of a boxing match to the plaintiff. The district court concluded that the assignment was not executed until after the district court raised the issue of standing at the pretrial hearing, and dismissed the suit with prejudice as a sanction. The district court made detailed findings and gave multiple warnings before the sanction. The sanction of dismissal with prejudice is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-40448, 12-18-2013.

Practice Areas: Appellate Law - Civil

5th Cir.

United States v. Andaverde-Tinoco

A jury found the appellant guilty of illegal reentry subsequent to removal after conviction of an aggravated felony. The appellant argues that the government improperly elicited testimony and argued to the jury that he had remained silent in violation of Doyle. There is no formula for the analysis of the final prong of plain error review. The Doyle violations do nit rise to the level of error that seriously affects the fairness, integrity, or public reputation of judicial proceedings. The conviction and sentence are affirmed. 5th U.S. Circuit Court of Appeals, No. 12-40472, 12-17-2013.

Practice Areas: Criminal Law

5th Cir.

Petteway v. Henry

The district court awarded fees to the plaintiffs in this voting rights case. Preclearance had always been an express condition of any election. Postponing preparatory activities for the eventual election under a precleared map cannot be characterized as a material legal success, and consequently, the plaintiffs have failed to meet the test of prevailing parties. Without evidence of the substance of the plaintiffs' presentations to the DOJ, the plaintiffs failed to show that the proposed maps would have been treated differently without the intervention of the plaintiffs. The district court's judgment is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 12-40856, 12-17-2013.

Practice Areas: Election and Political Law

Tex. App. Dist. 1

Jimenez v. State

The appellant was found guilty of alleged aggravated sexual assault of an elderly person. The appellant was not entitled to a jury instruction on the lesser-included offense of attempted aggravated sexual because his medical records demonstrate he had been unable to achieve and maintain an erection for eight years. Though penetration is an element of aggravated sexual assault, erection is not. Although the trial court erred in giving Texas Penal Code §21.011(b)(11)'s definition of "without consent" without an accompanying §2.05 instruction, the error was harmless. The trial court's judgment is affirmed. Tex. App. Dist. 1, No. 01-12-00588-CR, 12-17-2013

Practice Areas: Criminal Law

Tex. App. Dist. 4

Balderama v. State

The appellant contends that the trial court denied his rights under the Sixth Amendment by limiting his cross-examination of the state's witness, a former breath-test technical advisor. The court found that the witness was not an expert witness. The appellant failed to preserve the error. Had he preserved error, the appellate court would hold that the limitation on cross examination imposed by the trial court's finding was not unconstitutional. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-12-00653-CR, 12-18-2013.

Practice Areas: Criminal Law

Tex. App. Dist. 5

In re A.M.

The father appeals numerous rulings in this suit affecting the parent child relationship. By failing to make an offer of proof, the father waived his argument that the trial court abused its discretion by sustaining the mother's objection to testimony by a court-appointed psychologist, regarding discussions the psychologist had with another person concerning cultural context of recorded conversations between the mother and father. Comments on the reasons for the testimony or why the testimony is admissible are insufficient; the proponent must describe the actual content of the testimony. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-12-00907-CV, 12-16-2013.

Practice Areas: Family Law

Tex. App. Dist. 5

City of Dallas v. Davenport

This is an appeal the trial court's denial of a city's plea to the jurisdiction on a premise defect claim. The plaintiff was injured after allegedly slipping at an airport. The plaintiff was a licensee. Payment to park his car in the airport parking garage was not a fee he paid specifically for entry onto and use of the terminal in the area where he fell. The plaintiff's purchase of an airline ticket was not a fee he paid specifically for entry onto and use of the terminal in the area where he fell. The trial court's order is reversed and rendered. Dallas Court of Appeals, No. 05-13-00039-CV, 12-16-2013.

Practice Areas: Torts

Tex. App. Dist. 5

Ward v. Hawkins

The appellants appeal the denial of their motion to vacate a Kansas judgment. Nothing in the record demonstrates the trial court did not apply Texas law to the determination of personal jurisdiction. The record establishes sufficient minimum contacts with Kansas to permit the Kansas district court to exercise personal jurisdiction over the appellants. The record does not establish that the Kansas judgment is void. The record does not support an argument that the trial court did not consider appellants' admitted evidence concerning personal jurisdiction of the Kansas court over appellants. The trial court's denial of the motion to vacate is affirmed. Dallas Court of Appeals, No. 05-12-00712-CV, 12-16-2013.

Practice Areas: Appellate Law - Civil

Tex.Crim.App.

Ex parte Villegas, WR-78

The applicant for habeas corpus has demonstrated that counsel was ineffective for not presenting evidence of possible alternative perpetrators and for not discovering and presenting evidence that would have allowed the jury to give effect to the voluntary confession jury instruction submitted in this case. The trial court found that Sixth Amendment ineffective assistance of counsel violations, combined with cumulative evidence of innocence, showed that the applicant was actually innocent. Because applicant's ineffective assistance of counsel claims are not procedurally barred as subsequent, a Schlup innocence claim dependent on them is improper. Relief is granted, the judgment is set aside, and the applicant is returned to custody to answer the indictment. Texas Court of Criminal Appeals, WR-78, 260-01, 12-18-2013.

Practice Areas: Criminal Law

Tex. App. Dist. 6

In re Baker

The defendant petitions for mandamus ordering the trial court to vacate its order setting aside the jury verdict, to vacate a nonsuit, and to enter judgment on the verdict. A jury is not required to find someone at fault; the evidence here demonstrates that the jury could have found the hay bales, that allegedly caused the accident giving rise to this case, may have shifted in heavy rain or might have become loose when the defendant's trailer crossed railroad tracks. Because the grant of new trial was improper, the notice of nonsuit -- filed after the plaintiffs introduced all their evidence -- was untimely. The petition is granted. Texarkana Court of Appeals, No. 06-13-00118-CV, 12-17-2013.

Tex. App. Dist. 5

State For Best Interest and Protection of M.P.

The appellant appeals from an order of commitment for temporary inpatient mental health services. The expert diagnosis was based on more than the appellant's refusal to take medication and the expert's opinions and recommendations were more than mere conclusions. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-13-01079-CV, 12-16-2013.

Practice Areas: Health Law

5th Cir.

United States v. Guerrero-Navarro

The appellant challenges the district court's classification of his state of Washington 2009 conviction of Residential Burglary as a crime of violence for the purposes of United States Sentencing Guidelines Manual §2L1.2(b)(1)(A). The jurisprudence of Washington's courts have consistently interpreted the term "dwelling" such that it denotes and connotes traditional structures, and only those used for human habitation. The statute at issue constitutes the enumerated generic crime of burglary of a dwelling. The sentence enhancement is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-40802, 12-16-2013.

Practice Areas: Criminal Law

5th Cir.

In re Berman-Smith

The plaintiffs filed this adversary proceeding in bankruptcy court against their former business partner. Since the statute defining jurisdiction over bankruptcy appeals, 28 U.S.C. §158, expressly requires that the notice of appeal be filed under the time limit provided in Bankruptcy Rule 8002, that time limit is jurisdictional. In re Stangel remains good law, and the failure to file a timely notice of appeal in the district court leaves the district court, and the court of appeals, without jurisdiction. The appeal is dismissed, the district court's judgment is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 13-50154, 12-16-2013.

Practice Areas: Bankruptcy

5th Cir.

United States v. Duron-Caldera

The appellant, who was convicted of alleged illegal reentry, argues that the district court's admission of his grandmother's affidavit violated his Confrontation Clause rights. The government didn't provide sufficient evidence to support its argument that the affidavit is nontestimonial because it was created for the primary purpose of providing evidence for immigration, rather than criminal, proceedings. The court declines to adopt a primary purpose test that would find testimonial only statements having the primary purpose of accusing a targeted individual of engaging in criminal conduct. The judgment of conviction is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 12-50738, 12-16-2013.

Practice Areas: Criminal Law

5th Cir.

Weeks Marine, Inc. v. Standard Concrete Products, Inc.

This case involves an indemnity agreement between a general contractor and Standard Concrete, a manufacturer of pre-cast concrete fender modules. The complaint alleges alleges a defect in a module that is not a Standard Concrete product. Standard Concrete could have been liable for any defects in its concrete fenders even though the fenders are ultimately components of the bridge project. However, it does not extend Standard Concrete's duty to defend against claims allegedly caused by the steel forms that are not distributed commercially by the indemnitor. The same reasons that negate the duty to defend also negate the duty to indemnify. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-20610, 12-16-2013.

5th Cir.

In re Whitley

The appellants, a bankruptcy attorney and his firm, represented a client who failed to reorganize his debts under Chapter 13. The bankruptcy court issued a disgorgement order that was affirmed by the district court. The attorney appeals a portion of the order obliging him to return two properties outright. A bankruptcy judge's reach under the plain language of 11 U.S.C. §329(b) is limited to attorney compensation. The bankruptcy court here did not value the property at the time of transfer to the attorney, nor did it value the property at the time it ordered its return to the estate. Accordingly, the §329(b) remedy the bankruptcy court imposed was not indexed to the compensation paid. The attorney did not use estate funds to buy the properties at the foreclosure sales. It is undisputed that the foreclosure purchase was made from the attorney's account. The bankruptcy court's order is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 12-41125, 12-16-2013.

Practice Areas: Bankruptcy

Tex. App. Dist. 6

Adams v. State

The appellant was removed from the courtroom before the formal commencement of trial. His appointed counsel was instructed to act as "shadow counsel" and consequently did nothing during the course of the trial. A complete denial of the right to counsel is a structural constitutional error. The evidence, including statements made during voir-dire examination, is sufficient to support the jury's finding that the appellant was the individual charged in the indictment. The trial court's judgment is reversed and remanded. Texarkana Court of Appeals, No. 06-13-00013-CR, 12-13-2013.

Practice Areas: Criminal Law

Tex. App. Dist. 6

Taylor v. State

The appellant challenges his conviction of alleged theft of property having a value of $1,500 or more but less than $20,000. Although the entire chain of events does not evidence the intent, at the time the contract was formed, to unlawfully deprive the alleged victim of its funds, an allegedly false representation made by the appellant to induce the victim to make a $10, 000 payment is legally sufficient evidence supporting a finding of unlawful appropriation. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00078-CR, 12-13-2013.

Practice Areas: Criminal Law

Tex. App. Dist. 5

Gonzalez v. VATR Construction LLC

The trial court granted summary judgment in favor of the defendants in this case arising from a construction accident. The appellant cannot rely on upstream contracts to establish the existence of a duty, and the summary judgment evidence established that the parties to the contracts did not intend to confer third-party beneficiary status on the appellant or anyone else. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-12-00277-CV, 12-12-2013.

Practice Areas: Torts

Tex. App. Dist. 8

Edwards v. Edwards

The appellant challenges the denial of his motion for a new trial following an adverse verdict in a personal injury suit. Since the appellant failed to file a statement of issues with his partial trial record at the time of perfection under Texas Rule of Appellate Procedure 34.6(c)(1), it is presumed that his failure to provide evidence of due diligence indicates the lack of due diligence. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-12-00032-CV, 12-11-2013.

Practice Areas: Appellate Law - Civil

Tx. Sup. Ct.

Tucker v. Thomas

The court of appeals held that the trial court in this modification suit had discretion to characterize an award of attorneys' fees as necessaries and, as necessaries, had discretion to award fees as additional child support. In the absence of express statutory authority, a trial court does not have discretion to characterize attorneys' fees awarded in non-enforcement modification suits as necessaries or as additional child support. The court of appeals' judgment is reversed in part and remanded to the trial court. Texas Supreme Court, No. 12-0183, 12-13-2013.

Practice Areas: Family Law

Tx. Sup. Ct.

Ysleta Independent School District v. Franco

The court of appeals affirmed the trial court's denial of a school district's plea to the jurisdiction in this whistleblower case. The plaintiff was indefinitely suspended after reporting an alleged asbestos hazard. The plaintiff failed to show an objective, good-faith belief that the school district qualifies as an appropriate law-enforcement authority under the Whistleblower Act. The court of appeals' decision is reversed and the case is dismissed. Texas Supreme Court, No. 13-0072, 12-13-2013.

Practice Areas: Labor and Employment

Tex. App. Dist. 7

Saldana v. State

The appellant challenges his conviction for alleged unlawful possession of a firearm. The hypothetically correct jury charge in this case would obligate the state to prove that appellant was previously convicted of a felony offense and possessed a firearm after the conviction and before the fifth anniversary of his release from confinement. The prosecutor's invitation to "do the math" and infer the date of appellant's release from confinement from the date of the 2007 conviction, the length of sentence, and jail credit offered the jury an unworkable formula requiring surmise and speculation. The trial court's judgment is reversed and rendered. Amarillo Court of Appeals, No. 07-13-00091-CR, 12-06-2013.

Practice Areas: Criminal Law

Tex. App. Dist. 8

Sierra Club v. Andrews County

The appellant claims that the appellees' claims for declaratory judgment and tortious interference with a contract should have been dismissed pursuant to the Texas Citizens' Participations Act. The protected activity here - threating to enjoin shipment of radioactive waste to a leased facility - is the specific conduct complained of, from which all the other allegations of wrongdoing emanate and around which they revolve. The threat of injunctive relief was the act that led to appellees' claims. Because the claims brought by appellees arose from protected activity, the burden shifted to them under Section 27.005(c) to establish by clear and specific evidence a prima facie case for each essential element of their declaratory judgment claims, which they failed to do. El Paso Court of Appeals, No. 08-13-00003-CV, 12-06-2013.

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 13

Arbor E & T, LLC v. Lower Rio Grande Valley Workforce Development Board, Inc.

The appellant challenges the trial court's grant of a plea to the jurisdiction by Lower Rio Grande Valley Workforce Development Board. Local workforce development boards are governmental units under the Texas Tort Claims Act. The board is not a state agency. Local workforce development boards exist as distinct governmental entities entitled to assert immunity in their own right for the performance of governmental functions. As a local governmental entity, the statutory waiver applies to this breach of contract dispute. The trial court's order is reversed and remanded. Corpus Christi Court of Appeals, No. 13-13-00139-CV, 12-05-2013.

Tex. App. Dist. 12

East Texas Medical Center Regional Health Care System v. Reddic

The trial court denied a hospital's motion to dismiss this suit for damages caused by injuries the plaintiff allegedly sustained when she fell in the hospital's lobby. A fall, even by a visitor, in a hospital lobby meets the Texas Medical Liability Act's safety prong so that the plaintiff's claims in this case are properly classified as health care liability claims. The trial court's order is reversed and remanded. Tyler Court of Appeals, No. 12-13-00107-CV, 12-04-2013.

Practice Areas: Health Law

Tex. App. Dist. 14

Miller v. State

The appellant challenges the denial of his motion to suppress. Based on the totality of the circumstances and the officer's experience, the trial court reasonably could have concluded that the officer did not stop the vehicle solely for failing to maintain a single lane, and the officer observed driving behavior that reasonably lead him to believe appellant was driving while intoxicated, asleep, overmedicated, or otherwise impaired. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00062-CR, 12-05-2013.

Practice Areas: Criminal Law

Tex. App. Dist. 14

Melendez v. Houston Independent School District

The trial court granted summary judgment to the employer in this case alleging the plaintiff was forced to resign due to a disability. The Texas Commission on Human Rights Act does not have a safe harbor provision, and the Americans with Disabilities Act version applies "only to individuals who have been drug-free for a significant period of time." The appellant's alleged condition of addiction was current at the time of her adverse employment action. Houston's 14th Court of Appeals, No. 14-12-00946-CV, 12-05-2013.

Practice Areas: Labor and Employment

Tex. App. Dist. 14

Salinas v. State

The appellant contends, inter alia, that the trial court's assessment of a "consolidated court cost" against him violates the Texas Constitution. Because the admittedly valid uses are severable and are not foreclosed by other assertedly invalid uses to which the challenged court cost is put, appellant has not established that Texas Local Government Code §133.102(a)(1)'s $133 court cost always operates unconstitutionally as a tax or that it must be deleted in its entirety from the trial court's judgment. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-00378-CR, 12-05-2013.

Practice Areas: Criminal Law

Tex. App. Dist. 4

Mitchell v. State

The appellant challenges the admission of an alcohol analysis request form. Assuming without deciding that the request form was hearsay, and that none of the hearsay exceptions apply, there is no harm because there was other properly admitted evidence proving the same fact. Regardless of whether the request form was testimonial, the analyst who performed any and all testing on the appellant's blood was called to testify and was cross-examined by the defense. The appellant's Sixth Amendment rights were not violated. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-12-00870-CR, 12-04-2013.

Practice Areas: Criminal Law

Tex. App. Dist. 4

Watson v. State

The appellant challenges his conviction for alleged delivery of a controlled substance. A videotape offered without audio is not "in-court" testimony and therefore does not implicate Texas Code of Criminal Procedure article 38.141. The silent videotape was neither testimonial nor a statement, and did not violate the defendant's right of confrontation. The judgment of the trial court is affirmed. San Antonio Court of Appeals, No. 04-12-00398-CR, 12-04-2013.

Practice Areas: Criminal Law

5th Cir.

D.R. Horton, Inc. v. National Labor Relations Board

The National Labor Relations Board held that a company had violated the National Labor Relations Act by requiring its employees to sign an arbitration agreement that, among other things, prohibited an employee from pursuing claims in a collective or class action. The board's decision did not give proper weight to the Federal Arbitration Act. All outstanding motions are denied, the petition for review is granted. The board's order that National Labor Relations Act §8(a)(1) has been violated because an employee would reasonably interpret the Mutual Arbitration Agreement as prohibiting the filing of a claim with the board, is enforced. 5th U.S.Circuit Court of Appeals, No. 12-60031, 12-03-2013

Practice Areas: Labor and Employment , Labor Law

Tex. App. Dist. 6

Fox v. State

The appellant was convicted of allegedly tampering with a governmental record. The prosecution is based on the appellant's filing a document in the county clerk's office captioned: "CLAIM: NOTICE TO CURE/NOTICE OF INTENT TO SUE AS PRESENTED BY AFFIDAVIT OF Robert James Fox." Because the state failed to prove that the appellant presented his notice to the city official with knowledge of its falsity or with the intention that it be relied upon as a government document, the evidence is insufficient to support the conviction. The conviction is reversed and a judgment of acquittal is rendered. Texarkana Court of Appeals, No. 06-13-00056-CR, 12-04-2013.

Practice Areas: Criminal Law

Tex. App. Dist. 14

Douglas v. Moffett

The appellant, an inmate, challenges the trial court's dismissal of his civil action against two TDCJ employees. An inmate proceeding pro se and in forma pauperis must comply with the procedural requirements of Texas Civil Practice and Remedies Code Chapter 14. Because the inmate's list of previous filings and trust account balance may change between the time the suit and appeal are brought, the decisions interpreting these requirements of Chapter 14 at the trial court stage generally apply to appeals and original proceedings brought in an appellate court on or after Jan. 1, 2012. The appeal is dismissed for failure to comply with Chapter 14. Houston's 14th Court of Appeals, No. 14-12-00321-CV, 12-03-2013.

Practice Areas: Appellate Law - Criminal

5th Cir.

CHS, Inc. v. Plaquemines Holdings, L.L.C.

The parties' dispute focuses on whether the sale of the option contract to the appellee constitutes the assignment of a litigious right, and, if so, whether the appellant may redeem that right by reimbursing the appellee for the price it paid for the option contract plus interest. The sale fits within the statutory judicial-sale exception to redemption. The district court's order dismissing the appellant's complaint with prejudice is affirmed.

Practice Areas: Bankruptcy

Tex. App. Dist. 1

Sayers v. State

The appellant contends that the trial court erred in denying his motion to suppress evidence on the basis that the arresting officers committed an illegal search when they looked through his kitchen window and allegedly observed appellant with drugs and drug paraphernalia. The flowerbed under the appellant's kitchen window is clearly curtilage and therefore a constitutionally protected area. The trial court's judgment is reversed and remanded.

Practice Areas: Criminal Law

Tex. App. Dist. 1

Higginbotham v. State

The appellant argues that the trial court erred in denying his motion to suppress a video recording of him performing field sobriety tests in the police station's DWI room on the night of his arrest. Texas's Due Course of Law Clause does not afford the appellant greater protection than the federal Due Process Clause. A video from the officer's car at the scene of the arrest was not material under Brady. The trial court's judgment is affirmed.

Practice Areas: Criminal Law

Tex. App. Dist. 14

Jolisha Unique Ard v. State

The appellant contends the trial court erred in denying her motion to suppress an unrecorded oral statement she made in response to a police officer's questioning. The officer's minimal restriction of appellant's physical freedom during his brief questioning of appellant with little or no show of force was consistent with an investigative detention and not custodial interrogation. The trial court's judgment is affirmed.

Practice Areas: Criminal Law

5th Cir.

Farkas v. GMAC Mortgage, L.L.C.

The district court granted the defendants' motion for summary judgment on claims arising out of the threatened foreclosure on two residential investment properties the appellant owned. In actions enjoining a lender from transferring property and preserving an individual's ownership interest, it is the property itself that is the object of the litigation; the value of that property represents the amount in controversy. Quasi-estoppel, supported by different facts as to each property, bars the appellant's claims. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-20668, 12-02-2013.

5th Cir.

United States v. Njoku

The defendants were convicted on numerous counts related to their alleged involvement in schemes to commit health care fraud, receive or pay healthcare kickbacks, and/or make false statements for use in determining rights for benefit and payment by Medicare. Two agreements and two conspiracies existed because of the separate functions that central co-conspirators provided in each scheme and the distinctive activity that the government sought to punish in each case, therefore double jeopardy was not implicated. The district court's judgment is affirmed, but remanded to amend the written judgment to conform to a defendant's oral sentence. 5th U.S. Circuit Court of Appeals, No. 12-20095, 12-02-2013.

Practice Areas: Criminal Law

5th Cir.

Valdiviez-Hernandez v. Holder

The petitioner seeks review of the Department of Homeland Security's Final Administrative Removal Order. 8 U.S.C. §1228(b)'s expedited removal process applies to all aliens convicted of an aggravated felony who are not admitted for permanent residence. The cross reference in §1228(b) to aggravated felony crimes in §1227(a)(2)(A)(iii) does not narrow the class of aliens subject to the expedited removal process. The petition for review is denied and the motion carried with the case is denied. 5th U.S. Circuit Court of Appeals, No. 12-60677, 12-02-2013.

Practice Areas: Immigration Law

5th Cir.

Hood v. JP Morgan Chase & Co.

The Attorney General of Mississippi filed six in parens patriae complaints in the Mississippi Chancery Court alleging six credit card companies violated the Mississippi Consumer Protection Act by charging consumers for products they did not want or need. The defendants removed. Neither the Class Action Fairness Act nor complete preemption by the National Banking Act provides the basis for subject matter jurisdiction. The district court's denial of the state's motion to remand is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 13-60686, 12-02-2013.

Practice Areas: Consumer Protection

Tex. App. Dist. 14

Canas v. Centerpoint Energy Resources Corp.

The trial court dismissed all claims in this wrongful-death suit. The limitation of liability in the utility's tariff as to negligence and strict-liability claims is reasonable and enforceable, regardless of whether the Tariff covers claims based on gross negligence and willful misconduct or whether such a limitation of liability is reasonable. When liability for negligence or strict liability is barred by a limitation of liability in a utility's tariff, this bar does not, by itself, compel the conclusion that gross-negligence claims are also barred on the theory that gross-negligence claims do not exist independent of an underlying negligence claim. The trial court's judgment is affirmed in part and reversed and remanded in part. Houston's 14th Court of Appeals, No. 14-11-01055-CV, 11-27-2013.

Practice Areas: Torts

Tex. App. Dist. 14

Ellis v. Reliant Energy Retail Services, L.L.C.

The appellant challenges the trial court's summary judgment rendered in favor of the plaintiff on its suit on a sworn account and quantum meruit. The Public Utility Commission's interpretation of its rule 25.480(e)(1), requiring the electric utility to establish that the customer is responsible for alleged tampering before back-billing, is entitled to deference. The trial court's judgment is affirmed in part and reversed and remanded in part. Houston's 14th Court of Appeals, No. 14-12-00635-CV, 11-26-2013.

Practice Areas: Commercial Law

Tex. App. Dist. 14

Flutobo, Inc. v. Holloway

These are consolidated appeals involving a real estate company's liability to buyers in the context of the sale of a home owned by one of the company's salespersons in a transaction in which the company was both the buyer's agent and the seller's agent. That a realtor designated a broker as its agent for purposes of the Texas Real Estate License Act does not make the broker vicariously liable for any actionable conduct of the realtor's salespersons or agents. The trial court's judgment is reversed and rendered that the buyers take nothing against the real estate company. In a severed case the trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-00104-CV, 11-26-2013.

Tex. App. Dist. 4

Maynard v. Booth

The appellant in this divorce argues that, in the decree, she should have been awarded $42,000 in lost hog hunting income instead of only $18,000 and (2) the trial court should have awarded her an additional $178,000 in attorney's fees. Although the appellant's testimony regarding the amount of hunting income she could have earned, she also testified no hog hunting had been conducted on the ranch for six to seven years preceding the divorce. Although the appellant's evidence for the fee amount was not controverted, the trial court has discretion in determining what amount of attorneys' fees is reasonable. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-12-00585-CV, 11-27-2013.

Practice Areas: Family Law

Tex. App. Dist. 4

Peacock Hospitality, Inc. v. Association Casualty Insurance Association Casualty Insurance Co.

The appellant challenges an adverse summary judgment on its claims against an insurer relating to the alleged underpayment of an insurance claim for water damage to a hotel. If a surplus exists after the extinguishment of the debt upon a foreclosure where the insurance proceeds have not been applied to reduce the mortgage debt before the foreclosure, the mortgagor is entitled to retain all of the insurance proceeds and to bring suit against the insurance company for any underpayment because the excess value of the property as it existed at the time of the loss is the property of the mortgagor. Here, the summary judgment evidence fails to establish whether the foreclosure resulted in a deficiency or a surplus; therefore, a genuine issue of material fact exists with regard to whether the appellant retained a breach of contract claim against the insurer under the terms of the insurance policy independent of the deed of trust. The trial court's judgment is reversed and remanded. San Antonio Court of Appeals, No. 04-13-00006-CV, 11-27-2013.

Practice Areas: Insurance Law

Tex. App. Dist. 4

Bandera County v. Hollingsworth

A county appeals the trial court's judgment that denies its plea to the jurisdiction in this tax dispute, grants a summary declaratory judgment, and awards attorneys' fees to appellees. For an enforceable contract to be formed, "the minds of the parties must meet with respect to the subject matter of the agreement and all its essential terms." A settlement agreement must also comply with Rule 11 to be enforceable by the court. The trial court's judgment is reversed and rendered in part, and remanded in part. San Antonio Court of Appeals, No. 04-12-00581-CV, 11-27-2013.

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 3

Chase v. State

The appellant was convicted of alleged cruelty to nonlivestock animals. Texas Health and Safety Code §822.013 can, in circumstances like those present here, serve as defense to a criminal charge of cruelty to animals. The appellant was harmed by the trial court's failure to include an instruction that the jury could apply §822.013 to the alleged conduct. The trial court's judgment is reversed and remanded. Austin Court of Appeals, No. 03-12-00673-CR, 11-26-2013.

Practice Areas: Criminal Law