Recent Decisions

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

CRISTOBAL GALVAN-CERNA, Appellant v. THE STATE OF TEXAS, Appellee

The appellant, convicted of alleged murder, argues that he merely had an agreement with his co-conspirators to kidnap and rob the the victim's family, there was no intent to murder anyone, and appellant's presence when the murder occurred does not establish that he should have anticipated its occurrence. The perpetrators' plan was fraught with risks of violence, and the question of intent is irrelevant for purposes of Texas Penal Code §7.02(b). The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-12-00324-CR, 08-29-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

TESCO CORPORATION (US), Appellant v. STEADFAST INSURANCE COMPANY, Appellee

A worker sued the appellant after he sustained personal injuries while working on the appellant's drilling rig. The appellant filed suit against its insurer for a declaration that the insurer was obligated to pay any punitive damages award. That the underlying lawsuit arose in Colorado does not, in itself, mean that Colorado has an interest that is superior to the interests of Texas. Regarding the protection of justified expectations, Texas has a strong interest in protecting the freedom of contract, the value of certainty of enforcement, and a Texas insured's expectations in entering an insurance contract in Texas with a Texas insurer. The trial court's judgment is reversed and remanded. Houston's 1st Court of Appeals, No. 01-13-00091-CV, 08-28-2014

Practice Areas: Insurance Law

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

ANNIE EAST, Appellant v. SOUTHWEST CIMM'S INC. D/B/A BURGER KING #1002 A/K/A CIMM'S INCORPORATED, Appellee

The appellant alleged that she suffered injuries after a slip-and-fall at a restaurant. The appellant presented direct evidence that she "slipped on a dirty liquid substance" just "seven or eight steps" away from cash registers manned by employees who had served her. The trial court's summary judgment in favor of the appellee is reversed and remanded. Houston's 1st Court of Appeals, No. 01-13-00046-CV, 08-28-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

DONNA GAYLE HOLCOMB, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges her conviction of alleged theft of property with an aggregated value of between $100,000 and $200,000. It was error to include the name of a complainant in the jury charge who was not an owner of allegedly stolen funds and who was the subject of the grant of a directed verdict in favor of the appellant. This was a double jeopardy violation. Finality will be accorded to a directed verdict based on a finding of insufficient evidence, even when that finding is unilaterally issued by a trial court. The conviction is reversed and remanded for the trial court to reflect the third-degree felony of theft of property with an aggregated value of between $20,000 and $100,000, and for a new punishment hearing. Houston's 1st Court of Appeals, No. 01-08-00337-CR, 08-28-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

BANK OF AMERICA, N.A. as Trustee of Bettye Baker Brown Trust, u/w, f/b/o William David Deiss, Trustee of Bettye Baker Brown Trust u/w, f/b/o Dianne Elizabeth Mysliwiec, Trustee of Bettye Baker Brown Trust, u/w, f/b/o Paula Jane Roberts, Tru [...] v. PRIZE ENERGY RESOURCES, L.P., Prize Operating Company, Gruy Petroleum Management Company n/k/a Cimarex Energy Co. of Colorado, Magnum Hunter Resources, Inc., Cimarex Energy Co., Hunter Gas Gathering, Inc., Pat R. Rutherford Jr., Michael G. [...]

This case stems from a dispute over the effects of the termination of an oil, gas, and mineral lease and a joint operating agreement. Although there is no question the appellant, a bank, accepted royalties and monies for several years, ratification is an affirmative defense and a party asserting the defense must prove each element. The bank's acceptance of royalty payments after its notification to appellees that it considered the lease terminated does not, without more, estop the bank from asserting its consistently held position that the lease was terminated. The trial court's judgment is reversed and remanded. No. 04-13-00201-CV, 08-29-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

KEVIN LAVELLE KENT, Appellant v. THE STATE OF TEXAS, Appellee

The trial court overruled the appellant's objection to the jury charge because it did not require the jury to agree unanimously that the state proved beyond a reasonable doubt each element of the offense. Statutory violations aggregated for purposes of Texas Penal Code §31.09, the aggregate theft statute, are elements that the jury must unanimously agree upon. The trial court's judgment is reversed and remanded. Houston's 14th Court of Appeals, No. 14-13-00375-CR, 08-28-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

GBOWEH DICKSON GEORGE, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges his conviction of alleged murder. although appellant's obstinance and refusal to cooperate constituted "violations of court decorum," it did not constitute evidence of an inability to factually appreciate the proceedings or to communicate with counsel and the trial court. A trial court may decide that it is necessary to remove an unruly defendant from the courtroom and continue the trial in his absence unless and until he promises to conduct himself in a manner befitting an American courtroom. The appellant was not entitled to have the trial court instruct the jury not to consider his absence from the courtroom. The trial court's judgment was affirmed. Houston's 1st Court of Appeals, No. 01-12-01042-CR, 08-26-2014

Practice Areas: Appellate Law - Criminal

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

VIRGINIA DAILEY AND JOHN W. DAILEY, Appellants v. AUDREY ADICKES THORPE, Appellee

Plaintiffs brought several claims against the escrow officer based on alleged actions during the conveyance of the plaintiff's real property. The plaintiffs alleged they did not receive full payment of their mortgage. The escrow officer was not an obligor under the promissory note and had no duty, fiduciary or otherwise, to ensure the buyers made their monthly mortgage payments. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-13-00492-CV, 08-28-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Elbert Lee SANDERS, Appellant v. The STATE of Texas, Appellee

The appellant contends that the trial court erred in including two standard instructions in the punishment phase jury charge: an instruction on good conduct time and parole law, and an instruction for the jury not to consider sympathy. The trial court did not err by not adding language to the Texas Code of Criminal Procedure article 37.07 instruction such that the jury would not be led to believe that the appellant would obtain early release without any supervision based simply on accrued good conduct time. The sympathy instruction did not conflict with article 36.14. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-13-00487-CR, 08-29-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Ex parte K.R.K.

The appellant appeals the denial of his petition for expunction. The expunction statute does not make allowances for expunction of individual offenses stemming from an arrest. The state's appearance at the expunction hearing amounts to a general denial of the allegations in the petition. The trial court's order is affirmed. San Antonio Court of Appeals, No. 04-13-00470-CV, 08-29-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

LAW OFFICE OF OSCAR C. GONZALEZ, INC., and Oscar C. Gonzalez, Appellants v. Isabel SLOAN, Appellee

The plaintiff/appellee brought a DTPA claim based on alleged deceptive conduct by the appellants, an attorney and law office, in allegedly failing to disclose the disciplinary history of another lawyer to whom the appellee's case was referred and that the lawyer would not be supervised by the appellant. The DTPA claim and other non-negligence claims are components of an improperly fractured professional negligence claim. The evidence is sufficient to support the jury's finding that the appellant and the law office were negligent in their failure to safeguard the settlement proceeds at issue. The trial court's judgment is reversed and rendered in part, and the imposition of a constructive trust is affirmed. San Antonio Court of Appeals, No. 04-13-00239-CV, 08-29-2014

Practice Areas: Consumer Protection

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

The STATE of Texas, Appellant v. J. B. DANIEL, Appellee

An officer stopped the appellee's care based on information from a computer-based vehicle check. The appellee was subsequently charged with felony possession of a controlled substance, and the trial court granted his motion to suppress. Although the officer testified the information he received from the dispatcher was that "there was no insurance coverage on the vehicle," the trial court was bound by the state's stipulations during the second motion to suppress that the officer's suspicion was based on a dispatch "response of unconfirmed insurance." The trial court's order is affirmed. San Antonio Court of Appeals, No. 04-13-00554-CR, 08-29-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

WILLIE LEE HARPER, JR., Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges the trial court's denial of his motion to suppress. When a defendant affirmatively asserts during trial that he has no objection to the admission of the complained-of evidence, he forfeits any error in the admission of the evidence despite his denied pretrial motion on the issue, unless the record as a whole demonstrates his intent not to abandon the claim of error. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00205-CR, 08-29-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

LEVADA M. WELLS, TRUSTEE OF THE WELLS FAMILY TRUST, APPELLANT v. WELDON R. JOHNSON, JR., APPELLEE

The appellant claims title to disputed property by virtue of a chain of title from the sovereignty of the soil to the present, whereas the appellee claims title to the same property by virtue of adverse possession. The evidence is legally and factually insufficient to support a finding of actual and visible appropriation of the disputed property, commenced and continued under a claim of right that is inconsistent with and hostile to the claim of the appellant for the period of time required to establish adverse possession. The trial court's judgment is reversed and rendered. Amarillo Court of Appeals, No. 07-12-00378-CV, 08-28-2014

Practice Areas: Residential and Commercial Real Estate

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

IN THE MATTER OF S.P.

The appellant appeals the trial court's temporary health commitment order and subsequent order authorizing psychoactive medication. Texas Health and Safety Code §574.106(b)(3) does not require a medication to be specifically named. The trial court is not required to make findings on the subsection (b) factors, and nothing requires the state to offer evidence of the medications risk from the proposed patient's perspective. The trial court's orders are affirmed. Fort Worth Court of Appeals, No. 02-14-00209-CV, No. 02-14-00210-CV, 08-29-2014

Practice Areas: Health Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Juan RODRIGUEZ, Appellant v. The STATE of Texas, Appellee

In this substituted opinion, the appellant challenges his conviction of alleged aggravated sexual assault and indecency with a child. The jury was instructed that, "In order to return a verdict, each juror must agree to that verdict . . ." The application paragraph for each count correlated to a different verdict form, which required each of the jurors to sign the verdict form indicating this was his or her verdict. The court's charge was sufficiently divided and provided adequate language to ensure that the jury's verdict was unanimous as to each separate offense and a unanimity instruction was not required. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-13-00081-CR, 08-29-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

City of El Paso, Texas, Appellant v. Greg Abbott, Attorney General of Texas and Stephanie Townsend Allala, Appellees

The City of El Paso challenges the district court's denial of the city's plea to the jurisdiction in a case brought under the Texas Public Information Act. The fact that a former city councilman has public information on his private email account that he has not provided to the city, despite multiple official requests by the city that he do so, does not reflect that the city is unwilling to disclose that information as it is required to do so under the PIA. The district court lacked jurisdiction under principles of sovereign immunity. The district court's order denying the plea to the jurisdiction is reversed and judgment of dismissal is granted. Austin Court of Appeals, No. 03-13-00820-CV, 08-29-2014

SUPREME COURT OF TEXAS

ZACHRY CONSTRUCTION CORPORATION, PETITIONER, v. PORT OF HOUSTON AUTHORITY OF HARRIS COUNTY, TEXAS, RESPONDENT

A construction company sued for damages, under a no-delay-damages provision, for a delay allegedly caused by decisions of the defendant, the port of Houston. The court of appeals reversed the judgment of the trial court and rendered judgment in favor of the port. A no-damages-for-delay provision does not shield the owner from liability for deliberately and wrongfully interfering with the contractor's work; this is true also when the owner is a local governmental entity for which immunity from suit is waived by the Local Government Contract Claims Act. The Local Government Contract Claims Act does not waive immunity from suit on a claim for damages not recoverable under §271.153. The court of appeals' judgment is reversed and remanded. Texas Supreme Court, No. 12-0772, 08-29-2014

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

JAMES FRAZIER, Appellant, v. GNRC REALTY, LLC, Appellee.

The trial court's denied an architect's motion to dismiss under Texas Civil Practice and Remedies Code §150.002 for lack of a certificate of merit. The appellant, in both his answer and in discovery, admitted the HVAC design at issue was faulty. The appellant's admissions lend support to plaintiff's claims that negligence occurred in the construction of the HVAC system. The appellant substantially invoked the judicial process and thus waived his right to a certificate of merit. The trial court's judgment is affirmed. Corpus Christi Court of Appeals, No. 13-14-00447-CV, 08-29-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

William Bryan Finley, III, Appellant v. The State of Texas, Appellee

The appellant was convicted of the offense of resisting arrest and sentenced to 90 days' imprisonment. There is evidence from which a rational trier of fact could have reasonably inferred that the appellant had directed force "at or in opposition to" the officers, by forcefully pulling away from them. The trial court's judgment is affirmed. Austin Court of Appeals, No. 03-13-00015-CR, 08-28-2014

Practice Areas: Criminal Law

SUPREME COURT OF TEXAS

IN THE INTEREST OF K.M.L., A CHILD

The trial court terminated the parental rights of an intellectually disabled and mentally ill mother who executed a voluntary affidavit of relinquishment and the parental rights of an indigent father who was not appointed trial counsel nor provided notice of the trial. DFPS bore the burden of proving voluntariness by clear and convincing evidence. The evidence in support of the jury's verdict -- even though it may do more than raise surmise and suspicion -- is not capable of producing a firm belief or conviction that the mother knowingly and intelligently irrevocably relinquished her parental rights. The father was entitled to notice of the permanency hearings and the trial and that he did not waive that right to notice by appearing at trial, as the record does not show that he appeared voluntarily such as to waive his constitutional due process right to notice. As to the mother, the judgment is reversed in part and remanded. As to the father, the judgment is void and the case is remanded for a new trial. Texas Supreme Court, No. 12-0728, 08-29-2014

Practice Areas: Family Law

SUPREME COURT OF TEXAS

IN RE JOHN DOE A/K/A "TROOPER", RELATOR

The trial court ordered Google deposed to discover the identity of an anonymous blogger. A Texas Rule of Civil Procedure 202 court must have personal jurisdiction over a potential defendant. A writ of mandamus is conditionally granted directing the trial court to vacate its order. Texas Supreme Court, No. 13-0073, 08-29-2014

Practice Areas: Appellate Law - Civil

SUPREME COURT OF TEXAS

RAHUL K. NATH, M.D., PETITIONER, v. TEXAS CHILDREN'S HOSPITAL AND BAYLOR COLLEGE OF MEDICINE, RESPONDENTS

In this suit between a physician and other medical providers, the trial court imposed sanctions against the physician in excess of one million dollars for filing groundless pleadings in bad faith and with an improper purpose. If issues asserted in pleadings are revealed to be frivolous, and the defending party delays moving for summary judgment and sanctions, the defending party adopts some responsibility for the overall increase in litigation costs. The sanctions award is remanded for consideration for consideration of the extent to which the defendants caused the expenses they accrued by litigating a variety of issues over several years. Texas Supreme Court, No. 12-0620, 08-29-2014

Practice Areas: Appellate Law - Civil

SUPREME COURT OF TEXAS

HIGHLAND HOMES LTD., PETITIONER, v. THE STATE OF TEXAS, RESPONDENT

The state intervened to object to a class settlement award, arguing that undistributed residue should be retained for three years and then paid to the comptroller to hold for any owners who eventually surfaced. The trial court refused to modify the judgment, and the state appealed. The Unclaimed Property Act does not apply. It is of no consequence that several owners have not collected their property within the time period to which they agreed through class representatives. An owner need not actually collect his property to rebut the presumption of abandonment and render the act inapplicable; he need only claim it. The court of appeals' judgment is reversed and the trial court's judgment is affirmed. Texas Supreme Court, No. 12-0604, 08-29-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS FIRST DISTRICT HOUSTON

THE JACK M. SANDERS FAMILY LIMITED PARTNERSHIP, Appellant v. ROGER T. FRIDHOLM REVOCABLE, LIVING TRUST, IPG SERVICES CORP., E.S.M., AND J.R.M., Appellees

The appellant challenges the trial court's order denying its motion to discharge and release a charging order entered in favor of appellees. The trial court's order at issue here does not fully determine the substantive property rights of the parties involved, nor does it inform the partnership with sufficient clarity how it can comply with the order. The order does not discharge all outstanding claims and parties. The order was not a final judgment or appealable interlocutory order. The appeal is dismissed. Houston's 1st Court of Appeals, No. 01-13-00576-CV, 04-22-2014

Practice Areas: Appellate Law - Civil

SUPREME COURT OF TEXAS

KING FISHER MARINE SERVICE, L.P., PETITIONER, v. JOSE H. TAMEZ, RESPONDENT

The court of appeals concluded the trial court acted within its discretion in refusing to hear a last-minute charge objection and that sufficient evidence supported the jury's specific-order finding. Texas Rule of Civil Procedure 272 affords trial courts the discretion to set a deadline for charge objections that precedes the reading of the charge to the jury as long as a reasonable amount of time is afforded for counsel to examine and object to the charge. The trial court provided a reasonable amount of time in this case. The court of appeals' judgment is affirmed. Texas Supreme Court, No. 13-0103, 08-29-2014

Practice Areas: Appellate Law - Civil

SUPREME COURT OF TEXAS

EXXON MOBIL CORPORATION, PETITIONER, v. WILLIAM T. DRENNEN, III, RESPONDENT

The petitioner, an employer, argues that the conditions of its incentive program should be enforced under New York law. Forfeiture clauses in non-contributory profit-sharing plans, like the detrimental-activity provisions in this incentive program, are not covenants not to compete. Enforcement of New York law does not contravene any fundamental public policy of Texas. The court of appeals' judgment is reversed and rendered in favor of the employer. Texas Supreme Court, No. 12-0621, 08-29-2014

Practice Areas: Labor and Employment

SUPREME COURT OF TEXAS

ROBERT KINNEY, PETITIONER, v. ANDREW HARRISON BARNES (A/K/A A. HARRISON BARNES, A. H. BARNES, ANDREW H. BARNES, HARRISON BARNES), BCG ATTORNEY SEARCH, INC., EMPLOYMENT CROSSING, INC. AND JD JOURNAL, INC., RESPONDENTS

The trial court granted a motion for summary judgment against the plaintiffs who sought an injunction to remove allegedly defamatory statements from websites. The court of appeals affirmed. While a permanent injunction requiring the removal of posted speech that has been adjudicated defamatory is not a prior restraint, an injunction prohibiting future speech based on that adjudication impermissibly threatens to sweep protected speech into its prohibition and is an unconstitutional infringement on Texans' free-speech rights under Article I, Section 8 of the Texas Constitution. The court of appeals' judgment is reversed and remanded to the trial court. Texas Supreme Court, No. 13-0043, 08-29-2014

Practice Areas: Constitutional Law

SUPREME COURT OF TEXAS

BOB GREENE, AS NEXT FRIEND OF LEWAYNE GREENE, PETITIONER, v. FARMERS INSURANCE EXCHANGE, RESPONDENT

An insurer denied a homeowner's claim filed after a fire, based on a clause suspending dwelling coverage if the house was vacant for over 60 days. The insuring agreement specified the risk that the insurer accepted and the insured purchased: the dwelling would be covered until 60 days after she vacated it unless she paid additional premiums for an endorsement. This case is different from the prejudice analysis that formed the basis of prior decisions. The vacancy clause does not violate public policy. The court of appeals' judgment, holding that the vacancy provision must be applied, is affirmed. Texas Supreme Court, No. 12-0867, 08-29-2014

Practice Areas: Insurance Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BEATRICE LUNA, Individually and as Representative of the Estate of Israel Leija, Jr.; CHRISTINA MARIE FLORES, as Next Friend of J.L. and J.L., Minor Children, Plaintiffs - Appellees v. CHADRIN LEE MULLENIX, In His Individual Capacity, Defendant - Appellant

In this 42 U.S.C. §1983 suit alleging excessive use of force in the death of a person following a high-speed pursuit and shooting, the district court denied the appellant's motion for summary judgment based on qualified immunity. A suspect that is fleeing in a motor vehicle is not so inherently dangerous that an officer's use of deadly force is per se reasonable. Whether the person shot was posing a substantial and immediate risk of danger to other officers or bystanders, sufficient to justify the use of deadly force at the time of the shooting, is a disputed fact. The district court's ruling is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-10899, 08-28-2014

Practice Areas: Civil Rights

SUPREME COURT OF TEXAS

ALLEN CHADWICK BURBAGE, PETITIONER AND CROSS-RESPONDENT, v. W. KIRK BURBAGE AND BURBAGE FUNERAL HOME, RESPONDENTS AND CROSS-PETITIONERS

A jury assessed compensatory and exemplary damages against the petitioner for 10 statements allegedly defaming his brother. The petitioner claims that the trial court erred in submitting liability questions on potentially privileged statements. The objection was insufficiently specific and did not preserve his claim of error. No evidence supports the amount of compensatory damages and, consequently, the exemplary damages cannot stand. The court of appeals' judgment is affirmed in part and reversed and rendered in part. Texas Supreme Court, No. 12-0563, 08-29-2014

Practice Areas: Torts

SUPREME COURT OF TEXAS

DAVID HAMRICK, MAGGIE HAMRICK, SUE BERTRAM AND STEVE BERTRAM, PETITIONERS AND CROSS-RESPONDENTS, v. TOM WARD AND BETSEY WARD, RESPONDENTS AND CROSS-PETITIONERS

A party claims a road that was necessary for access to its landlocked, previously unified parcel is a prior use easement. The trial court and court of appeals agreed. The necessity easement is the legal doctrine applicable to claims of landowners asserting implied easements for roadway access to their landlocked, previously unified parcel. The court of appeals' judgment is reversed and remanded to the trial court for the party to elect whether to pursue a claim under the necessity easement doctrine. Texas Supreme Court, No. 12-0348, 08-29-2014

Practice Areas: Personal Property

SUPREME COURT OF TEXAS

GILBERT WHEELER, INC., PETITIONER, v. ENBRIDGE PIPELINES (EAST TEXAS), L.P., RESPONDENT

A landowner was awarded damages on its breach of contract claim for damage to its property from construction of a pipeline. The court of appeals reversed because the landowner had failed to secure a finding as to whether the injury to the property was temporary or permanent. As a general rule, when an injury to real property is temporary, the owner is entitled to damages commensurate with the cost of restoring his property, but when an injury to the same property is permanent, the owner is entitled to damages commensurate with the loss in the fair market value to the property as a whole. This rule applies when the wrongful conduct causing the injury stems from breach of contract. Because an exception applies for the intrinsic value of trees, the error was harmless and the court of appeals' judgment is reversed and remanded. Texas Supreme Court, No. 13-0234, 08-29-2014

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

ANIBAL CANALES, JR., PetitionerAppellant v. WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, RespondentAppellee

The petitioner claims that he received ineffective assistance of counsel during sentencing. The failure of the COA to meet the requirements of 28 U.S.C. §2253(c)(3) is not jurisdictional. Trial counsel's performance was deficient during the sentencing phase; a decision not to investigate must be directly assessed for reasonableness in all the circumstances. The appellant established cause to excuse the procedural default of his claim of ineffective assistance of trial counsel at sentencing.The district court's dismissal is reversed in part and remanded for the district court to consider whether the appellant can prove prejudice. 5th U.S. Circuit Court of Appeals, No. 12-70034, 08-29-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

CLARENCE LEE, SR., Individually and as Next Friend of C.L., a Minor; ANGELIA LEE, Individually and as Next Friend of C.L., a Minor, Plaintiffs-Appellees, v. UNITED STATES OF AMERICA, Defendant-Appellant.

The government appeals the district court's award of damages in a medical malpractice suit under the Federal Tort Claims Act. The district court could order periodic payments in the form of a reversionary trust thereby avoiding any semblance of imposing an ongoing obligation on the government. Structuring the damages award in this manner would sufficiently mirror the Texas periodic payment scheme to comply with the FTCA. The district court's judgment is vacated insofar as it failed to fashion a damages award similar to that contemplated by the Texas periodic payment statutory scheme and awarded post-judgment interest not in compliance with 31 U.S.C. § 1304(b)(1)(A). 5th U.S. Circuit Court of Appeals, No. 13-50905, 08-28-2014

Practice Areas: Torts

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

IN THE MATTER OF: RICHARD POSTON, Debtor.

The bankruptcy court and district court concluded that a transfer of funds to a creditor was a preferential transfer. The transfer occurred when the bank received a certified copy of the receivership order, which would fall within the preference window and make the transfer avoidable. The lower courts' decision is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-41050, 08-28-2014

Practice Areas: Bankruptcy

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

In the Matter of: HERITAGE CONSOLIDATED, L.L.C., Debtor, ENDEAVOR ENERGY RESOURCES, L.P.; ACME ENERGY SERVICES, INCORPORATED, D/B/A RIG MOVERS EXPRESS, D/B/A BIG DOG DRILLING, Appellants, v. HERITAGE CONSOLIDATED, L.L.C.; HERITAGE STANDARD CORPORATION, Appellees.

The appellants, drillers, performed work on debtors' well, but were never paid. Drillers subsequently filed a mineral lien on the well, and then a claim in debtors' bankruptcy. The bankruptcy court dismissed drillers' constructive trust and equitable lien claims and granted summary judgment to debtors on drillers' mineral contractor's and subcontractor's lien claims. The district court affirmed. Drillers were subcontractors with regard to debtors; the district court therefore erred in granting summary judgment to debtors on drillers' subcontractors' lien claims. The district court's dismissal of drillers' constructive trust and equitable lien claims is affirmed, the district court's grant of summary judgment on drillers' subcontractors' lien claims is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 13-10969, 08-27-2014

Practice Areas: Bankruptcy

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

WHATABURGER RESTAURANTS LLC, Appellant, v. YVONNE CARDWELL, Appellee.

The appellant challenges the trial court's denial of its motion to compel arbitration and to dismiss the personal injury suit. The trial court's determination of unconscionability is founded upon bases that the appellee did not raise. The trial court's order is reversed and remanded. El Paso Court of Appeals, No. 08-13-00280-CV, 08-13-2014

Practice Areas: Alternative Dispute Resolution , Arbitration (ADR)

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

IN THE INTEREST OF B.R.F. AND M.A.F.

A child's mother appeals the trial court's order on notice of changed status, which ordered her to pay current child support in the amount of $257 per month to the father. The trial court acquired continuing, exclusive jurisdiction at the time of divorce and may modify prior orders where the circumstances have materially and substantially changed since the date of the original order. Retroactive support is authorized by statute but it is limited to the date citation was served upon the obligor or the date of obligor's appearance, whichever occurs earlier. Within these confines, the trial court has broad discretion. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-12-00353-CV, 08-13-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

CHRISTOPHER L. GAY AND STEVEN L. CARROLL, Appellants, v. THE CITY OF WICHITA FALLS, TEXAS, Appellee.

The appellants, former employees of a city, challenge the trial court's order granting the city's plea to the jurisdiction based on governmental immunity. Because the Legislature did not incorporate the proprietary/governmental dichotomy into Texas Local Government Code Chapter 271, it did not intend to eradicate governmental immunity from suit for contract-based claims stemming from proprietary acts. The city is immune from a breach of contract claim based on a group insurance policy between the insurer and a trust organized by the city. The trial court's order is affirmed. El Paso Court of Appeals, No. 08-13-00028-CV, 08-13-2014

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

FLEX ENTERPRISES LP, FLEX ENTERPRISES LP D/B/A EP FITNESS, AND FLEX ENTERPRISES MANAGEMENT LLC, Appellants, v. VICTOR CISNEROS, Appellee.

The appellants challenge the denial of their motion to compel arbitration in this suit brought by a former employee. The general terms of the Employee Acknowledgement and Arbitration Agreement are subject to specific terms of the employee manual, which allow the policy -- and therefore, the scope and applicability of the claims subject to the EAAA -- to be modified unilaterally by the appellants. This makes the EAAA supported by an illusory promise and therefore, unenforceable. The trial court's ruling is affirmed. El Paso Court of Appeals, No. 08-12-00123-CV, 08-07-2014

Practice Areas: Alternative Dispute Resolution , Arbitration (ADR)

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

SEVEN HILLS COMMERCIAL, LLC, CATENARY GROUP, LLC, POST REAL ESTATE GROUP, INC., POST INVESTMENT GROUP, LLC, AND JASON POST, Appellants, v. MIRABAL CUSTOM HOMES, INC., FST GROUP, LLC, D&G INVESTMENT GROUP, LLC, JASON MIRABAL, AND GARY GUION, Appellees

The appellant challenges the trial court's refusal to compel arbitration. Because the arbitration provision states that "the determination of the scope or applicability of this Agreement to arbitrate" will be determined by arbitration, the arbitrator has the primary responsibility to decide whether the parties to the dispute are bound by the arbitration provision. The trial court's order is affirmed in part, and reversed in part and remanded. Dallas Court of Appeals, No. 05-13-01306-CV, 08-07-2014

Practice Areas: Alternative Dispute Resolution , Arbitration (ADR)

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

BRUCE B. MCLEOD III, Appellant, v. ALFRED GYR, Appellee

This is an appeal from a post-answer default judgment rendered against an attorney on claims alleging deceptive trade practices and breach of fiduciary duty. That the plaintiff acquired the attorney's legal services with money from other people does not effect his standing as a DTPA consumer. The trial court acted within its discretion in finding that the appellant and attorney failed to appear at trial as a result of of intentional conduct or conscious indifference; the appellant disregarded notice of trial setting because there was a settlement agreement. The trial court's judgment is affirmed as modified, conditioned on the filing of suggested remittiturs. Dallas Court of Appeals, No. 05-12-01607-CV, 08-07-2014

Practice Areas: Consumer Protection

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

VIEWPOINT BANK, Appellant v. ALLIED PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee

An insurer issued checks jointly payable to its insured and the insured's mortgagor. Without the mortgagor's consent or endorsement, the insured deposited the checks and obtained payment. The mortgagor did not receive the proceeds. The trial court severed the mortgagor's claims against the insurer in the subsequent suit and rendered final summary judgment in favor of the insurer. The insurer was not discharged from its liability on the underlying obligation or the checks and the mortgagor is entitled to summary judgment on the checks under article 3 of the Uniform Commercial Code. The trial court's judgment is reversed, rendered, and remanded. Dallas Court of Appeals, No. 05-12-01370-CV, 08-07-2014

Practice Areas: Insurance Law

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

CRESENCIO BASTIDA, Appellant v. RICHARD AZNARAN, INDIVIDUALLY, AND D/B/A THE HATTON RANCH, Appellee

During delivery of a mobile home, the appellant climbed on top of the mobile home, possibly to lift a telephone line hanging across the appellee's ranch road, and accidentally came into contact with an energized electrical line. Where there is evidence that the premises owner had supervisory control of the activity in which the plaintiff was injured, the trial court should deny summary judgment to the premises owner. Even though an energized electrical line was not a concealed defect, a fact issue exists with regard to whether the appellee owed a duty to warn the appellant of a potential hazard consisting of the energized electrical line. The trial court's judgment is reversed and remanded in part, and otherwise affirmed. Dallas Court of Appeals, No. 05-12-01469-CV, 08-11-2014

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

KIPP, INC., Appellant v. KIMBERLY WHITEHEAD, Appellee

The appellant, an open enrollment charter school, challenges the trial court's order denying its plea to the jurisdiction on the claims brought against it by the appellee for alleged employment discrimination based on her sex and race. The appellant replaced the appellee temporarily with an african-american person and then with an hispanic person. The trial court did not err in denying the charter school's plea to the jurisdiction on the appellee's race-discrimination claim on the ground that she was not replaced with someone outside of her protected class. The trial court's denial of the plea to the jurisdiction is affirmed. Houston's 1st Court of Appeals, No. 01-13-00695-CV, 08-12-2014

Practice Areas: Labor and Employment

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

IN THE INTEREST OF V.L.B., a child

The appellant challenges the termination of her parental rights to her daughter. The appellant filed an affidavit of indigence a week before the trial setting. A pro se request for appointment of counsel in a parental termination case gives rise to affirmative duties on the part of the trial court. The trial court erred in failing to first consider the appellant's affidavit of indigency and appoint an attorney ad litem to represent her before proceeding with the termination trial. The trial court's judgment is reversed and remanded. Houston's 1st Court of Appeals, No. 01-14-00201-CV, 08-14-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

RENATO ACAIN, RANDY AGOSTO, EFREN ALIVIANO, ARTEMIO ANZALE, GREG BA-ANG, JEFFREY BATAC, FERDINAND BELLIDO, DENNIS BICERA, VERGINIO BOLAMBOT, ANATALIO CAANG, ROMEO CANDILADA, ARNEL CASTANEDA, LIEZELLITO CLORIBEL, LEONILO COLINA, ARTURO CONCLARA, ELLESER CRISTOBAL, LUDOVICO DEFACTO, JORGE DENAQUE, ELM [...] v. INTERNATIONAL PLANT SERVICES, LLC, MBC HUMAN RESOURCES DEVELOPMENT CORPORATION, NOUREDDINE AYED, KARIM AYED, NIDA SARMIENTO, RICHARD DALE JOHNSTON, ADRIENNE WILSON, AND LEYSANDER BUSTAMONTE, Appellees

The trial court dismissed this case, that alleged causes of action based on alleged human trafficking, on the defendants' motion based on principles of international comity. Considering all of the factors of Section 403 of the Restatement (Third) of the Foreign Relations Law of the United States, in light of the Texas law on forum non conveniens and the principle that Texas courts must not delegate their judicial prerogative where jurisdiction exists, exercise of jurisdiction over this case by Texas is not unreasonable. The trial court's judgment is reversed and remanded. Houston's 1st Court of Appeals, No. 01-13-00310-CV, 08-12-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

MICHAEL WARD, Appellant v. WAYNE STANFORD, MORRIS TURMAN, BRANKA KARAKASHEVICH AND TRAVIS WARD, Appellees

This is an appeal of a summary judgment denying claims of fraud and mismanagement relating to a trust. A renewal note that "amends and wholly restates" a previous note is negotiable, and the applicable statute of limitations for an action to enforce the renewal note is six years. The trustees failed to sue on the renewal note before limitations barred that claim. However, the date on which that failure allegedly constituted a breach of their fiduciary duty resulting in legal harm has not been proved as a matter of law. Thus, the trial court erred in granting summary judgment on appellant's claims against the trustees regarding their failure to pursue collection of the renewal note. The trial court's judgment is reversed and remanded. Dallas Court of Appeals, No. 05-12-00855-CV, 08-14-2014

Practice Areas: Trusts and Estates

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

J.G. WENTWORTH ORIGINATIONS, LLC, Appellant v. SHANTEL D. FREELON AND RSL FUNDING, LLP, Appellees

The appellant challenges the trial court's order approving the appellee's application for the transfer of certain payments to the appellee from a structured settlement. While the Structured Settlement Protection Act provides a specific protection for structured-settlement obligors and annuity issuers from having to divide payments between the payee and any transferee, or between two or more transferees, it does not provide a similar protection for transferees who enter into "servicing arrangements." The trial court's order is affirmed. Houston's 1st Court of Appeals, No. 01-13-00059-CV, 08-12-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

MOHAMMUD NANGURAI, Appellant v. THE STATE OF TEXAS, Appellee

The appellant contends that the trial court erred by denying his request for an instruction on the lesser-included offense of misdemeanor assault. The jury was denied an opportunity to evaluate the appellant's conduct in light of the lesser criminal offense. The jury was faced with the potential dilemma of convicting the appellant of felony assault, without regard to whether they had reasonable doubt about his dating relationship with the alleged victim, or acquitting him of criminal liability entirely despite sufficient evidence to show that he allegedly assaulted the complainant in this case. The trial court's judgment is reversed and remanded. Houston's 1st Court of Appeals, No. 01-13-00642-CR, 08-14-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

DOROTHY R. SCHROEDER, Appellant v. LND MANAGEMENT, LLC, Appellee

The appellant challenges the portion of the county court's post-judgment order disbursing $4,000 of her $8,000 appeal bond funds as damages to the appellee after the appellee prevailed in its forcible detainer suit against her. Its plenary power having expired, the county court possessed inherent power to issue an order disbursing the funds from its registry, subject to the limitation that its order not be inconsistent with its final judgment or impose obligations in addition to those reflected in its final judgment. The disbursement order is wholly inconsistent with, and in addition to, the obligations set forth in the county court's final judgment wherein it awarded no damages to the appellee. The trial court's order is vacated in part, reversed in part, and rendered. Houston's 1st Court of Appeals, No. 01-13-00460-CV, 08-12-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

SEAPRINTS, INC., HERMAN H. KOSTER, AND ELISABETH KOSTER, Appellants v. CADLEWAY PROPERTIES, INC., Appellee

The appellants claimed that they were never served with process and had no notice of the action in which a default judgment was rendered. The burden of proof for a bill-of-review plaintiff is preponderance of the evidence. Each of the appellants produced evidence corroborating the denial of service, evidence that created a genuine issue of material fact on the subject of service under the corroboration requirement for a bill of review. The trial court's judgment is reversed and remanded. Houston's 1st Court of Appeals, No. 01-13-00860-CV, 08-12-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

WILLIAM CARL WOOLEY, Appellant v. RANDY SCHAFFER, Appellee

A pro se inmate appeals the dismissal of his civil suit against his former attorney pursuant to Texas Rule of Civil Procedure 91a. The determinations of whether a cause of action has any basis in law and in fact are legal questions that are reviewed de novo, based on the allegations of the live petition and any attachments. The pleadings are construed liberally in favor of the plaintiff using the fair notice pleading standard. The Peeler doctrine applies to counsel retained to seek habeas relief. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00385-CV, 08-14-2014

Practice Areas: Appellate Law - Criminal

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

E. I. DU PONT DE NEMOURS AND COMPANY, Appellant v. ROBERT EARL ROYE AND DIANE ROYE, Appellees

The appellee was burned when he fell into a pool of hot water at a chemical plant owned by the appellant. Because the evidence does not show the appellant had actual or constructive knowledge of the concealed hazard, the appellee failed to establish that the appellant owed him a duty under premises liability law. The trial court's judgment is reversed and a take-nothing judgment is rendered. Houston's 14th Court of Appeals, No. 14-12-00740-CV, 08-12-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

CLAY EXPLORATION, INC., Appellant v. SANTA ROSA OPERATING, LLC, Appellee

A receiver appointed under Texas Civil Practice and Remedies Code §64.091 executed an oil and gas lease to the appellant, Clay Exploration Inc. Clay appeals the trial court's order denying its motion to confirm the receiver's lease and granting the appellee Santa Rosa Operating L.L.C.'s motion to set aside the lease. Based on the limited authority granted in the order appointing the receiver, the trial court correctly ruled the receiver lacked authority to lease to Clay. The trial court's order setting aside the lease is affirmed. Houston's 14th Court of Appeals, No. 14-13-00042-CV, 08-14-2014

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

ANGELA CORNEJO AND CARLOS PORTILLO, Appellants v. STEPHEN J. HILGERS, M.D., Appellee

The appellants challenge the trial court's dismissal of their health care liability claims. An expert with experience in managing obstetrical complications in pregnancy and labor, interpreting electronic fetal monitoring and abnormal fetal heart rate patterns, and recognizing fetal hypoxia as predicted by fetal heart rate patterns, is qualified to opine as to the causal relationship between a newborn's injuries and the alleged failure of a resident or obstetrician to recognize complications in pregnancy and take appropriate actions. The trial court's order is reversed and remanded. Houston's 1st Court of Appeals, No. 01-13-00752-CV, 08-14-2014

Practice Areas: Health Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

NEERA PATIDAR AND AKBAR HOSSAIN, Appellants v. BANK OF AMERICA, N.A. AND FANNIE MAE A/K/A FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellees

In this appeal of a summary judgment granted against a bill in review, the appellants allege that the trial court's failure to rule on their motion for continuance in a 2012 motion for summary judgment prevented them from presenting their responsive contentions to the motion before the court granted a 2013 summary judgment favoring the appellee. The appellants failed to respond to the motion for summary judgment filed in 2013. In the 2013 motion, the appellees point out that the trial court's granting of the 2012 MSJ impliedly denied the motion for continuance. The trial court's attempt to vacate the grant of the 2012 MSJ in the underlying case does not reveal anything about the reason for the attempt or acknowledge any error. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00382-CV, 08-14-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

NANCY QUESTED, Appellant v. THE CITY OF HOUSTON, Appellee

This substitute opinion concerns a car collision that occurred when an on-call Houston Police Department SWAT officer drove his personal vehicle to respond to a hostage stand-off situation. The Texas Tort Claims Act emergency exception applies unless the plaintiff presented some evidence that the officer was not responding to an emergency call or reacting to an emergency situation or that the officer's actions showed he did not care what happened to motorists. Because the evidence conclusively establishes the emergency exception, the trial court's judgment granting a plea to the jurisdiction is affirmed. Houston's 14th Court of Appeals, No. 14-13-00516-CV, 08-07-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

CASMIR IRIELLE, Appellant v. THE STATE OF TEXAS, Appellee

The appellant asserts that the jury did not unanimously agree about the occurrence of a single criminal offense. Texas Penal Code §39.04(a)(2) encompasses a variety of different nature-of-conduct offenses because the definition of "sexual contact" is considered elemental. By listing "sexual contact," "sexual intercourse," and "deviate sexual intercourse" in the disjunctive, the charge grouped five distinct offenses. Considering that the parties and trial court did not emphasize the unanimity aspect during trial and that the evidence and arguments of counsel would have made the likelihood of non-unanimity exceedingly remote, the appellant did not suffer egregious harm. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00390-CR, 08-12-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

JESUS MARTINEZ MENDOZA, Appellant v. THE STATE OF TEXAS, Appellee

The appellant contends that the trial court erred in denying his motion to suppress evidence of his pretrial identification on the bases that the out-of-court identification procedure was impermissibly suggestive and the identification was unreliable. The pretrial identification occurred approximately one hour after the alleged robbery. The suspects were found soon after the robbery in a vehicle matching the description given by the complainants about a mile-and-a-half away from where the alleged robbery occurred. The police employed safeguards to reduce any influence the complainants could have had on each other in the identification process by keeping them separate en route to and during the show-up. The police presented each suspect one at a time, and the suspects were illuminated by police car spotlights and could be seen clearly. Each complainant was able to identify the three suspects who allegedly directly confronted them during the robbery. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00222-CR, 08-14-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Herlinda ARNOLD, Appellant v. WORLDWIDE CLINICAL TRIALS a/k/a WCT CORPORATION, Appellee

The appellant contends the trial court erred in granting summary judgment because the appellee's registered agent was timely served with a citation using the appellee's assumed name. Although the registered agent was also the registered agent for a second entity that used the same common name, the appellant was entitled to serve the suit filed against the appellee in its assumed name. The trial court's judgment is reversed and remanded. San Antonio Court of Appeals, No. 04-13-00609-CV, 08-13-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

CITY OF SAN ANTONIO, Appellant v. ALAMO AIRCRAFT SUPPLY, INC., Alamo Aircraft, Ltd., Wulfe Rentals, Ltd., and Lobo GC, Ltd., Appellees

The appellees and a city negotiated a possession and use agreement for properties that were the subject of a condemnation suit. In a subsequent suit alleging breach of the PUA, the appellees argued that their claim inherited the waiver of immunity from the prior condemnation suit. The PUA did not settle the taking claim, and thus Lawson does not convey the taking claim's waiver of the city's immunity to appellees' breach of contract cause of action. The trial court's order is reversed and judgment is rendered dismissing the suit with prejudice. San Antonio Court of Appeals, No. 04-14-00057-CV, 08-13-2014

Practice Areas: Residential and Commercial Real Estate

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Jessica PINEDA, Appellant v. The STATE of Texas, Appellee

The appellant challenges the denial of her motion to suppress. The warrantless stop at issue occurred after a tipster witnessed the appellant or her companions attempting to sell "stuff" out of the trunk of her vehicle in a parking lot. Because the tipster did not supply contextual facts showing that the appellant was soliciting without a permit, the facts provided by the anonymous tipster failed to provide reasonable suspicion that the appellant was in violation of the city's ordinance. The appellant's consent to the search of her vehicle did not dissipate the taint of the officer's Fourth Amendment violation. The trial court's judgment is reversed and remanded. San Antonio Court of Appeals, No. 04-13-00701-CR, 08-13-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

NOEL GALVAN CERNA, Appellant v. THE STATE OF TEXAS, Appellee

The appellant appeals his conviction for capital murder and his sentence of life imprisonment without the possibility of parole. After eliminating the accomplice testimony from consideration and then examining the remaining portions of the record, the record contains ample evidence linking appellant in some way to the commission of the capital murder. The Court of Criminal Appeals in Garza did not overrule or abrogate binding precedent requiring that one who was an adult at the time of the offense preserve an Eighth Amendment challenge to a sentencing scheme for mandatory life imprisonment without the possibility of parole in the trial court. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-01126-CR, 08-12-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

DEREK WRYAN WILSON, APPELLANT v. THE STATE OF TEXAS, STATE

The appellant argues that the trial court erred by admitting a portion of his video-recorded statement taken after he was in custody and without Miranda warnings. Probable cause alone does not automatically establish custody; other circumstances must also combine to lead a reasonable person to believe that he is not free to leave and is under arrest. Although a reasonable person would have realized the incriminating nature of the appellant's alleged admission, no other factors indicating police control existed to lead a reasonable person to believe that he was under arrest. The trial court's judgment is affirmed. Fort Worth Court of Appeals, No. 02-13-00218-CR, 08-14-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Carlo BAZAN and Denise Bazan, Individually and d/b/a Vamp Ultra Lounge & Cafe, LLC, Appellants v. Luis A. MUOZ Jr., Appellee

The appellee sued the appellants alleging that the appellants wrongfully took money from a business they operated together. In light of the jury's finding that an informal fiduciary relationship existed between the parties, the appellants had a duty to disclose material information to the appellee. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-13-00184-CV, 08-13-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

The STATE of Texas, Appellant v. Matthew David AVANS, Appellee

The state appeals the trial court's decision to grant a motion to suppress. While the officer initially possessed reasonable suspicion to detain the appellee and conduct a Terry frisk after observing what he mistakenly thought was a prohibited weapon, a sword, once the appellee was removed from the vehicle and handcuffed, the sword was out of his reach, and the officer was required to have a reasonable belief that the appellee was dangerous and could gain immediate control of another weapon before searching the interior of the vehicle. The trial court's order is affirmed. San Antonio Court of Appeals, No. 04-13-00414-CR, 08-13-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Raymond MCKINNEY, Appellant v. The STATE of Texas, Appellee

After seeing a patrol car more than 100 yards away, the appellant turned and ran. Officers arrested him for evading detention and subsequently allegedly found illegal drugs on his person. The trial court denied his motion to suppress. Flight alone is insufficient to justify an investigatory detention. There was no show of authority by the officers at the time the appellant ran. The appellant's presence in a high-crime area is also not sufficient to support an investigatory detention. The trial court's judgment is reversed and remanded for a new trial. San Antonio Court of Appeals, No. 04-13-00433-CR, 08-13-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

JANICE DUDLEY, ET AL., Appellants v. NETTIE JOHNSON AND JOSEPH CONWRIGHT, Appellees

The trial court found against the appellants in this title dispute between two neighboring families connected by a marriage. Although it is not always necessary for adverse possession to be by the same person for the statutory period, in that case privity of estate must be established to meet the statutory requirement of 10 years' continuous possession. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-14-00013-CV, 08-15-2014

Practice Areas: Residential and Commercial Real Estate

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

DESMOND DEWAYNE JACKSON, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges the trial court's rejection of his Batson challenges. Each of four veniremembers stated that they would require proof above and beyond the fact that the appellant allegedly had a gun with him during the robbery in order to enter a deadly-weapon finding. Each of these veniremembers was rehabilitated on this issue. This was a race-neutral reason for striking the veniremembers. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00258-CR, 08-14-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

JAMES HOWARD TAYLOR, APPELLANT, v. THE STATE OF TEXAS, APPELLEE.

Before the state offered two prior judgments of conviction, appellant offered to stipulate as to one of the convictions for purposes of establishing a jurisdictional elevation of the case to a third-degree felony. The state would not agree to the stipulation and the trial court allowed the state to introduce both convictions during the guilt-innocence phase of the trial. The trial court abused its discretion when it refused to allow appellant to stipulate to one prior conviction for alleged assault on a family member. The trial court's judgment is reversed and remanded. Amarillo Court of Appeals, No. 07-13-00383-CR, 08-08-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

IN RE FORT WORTH STAR-TELEGRAM; DALLAS MORNING NEWS; CBS STATIONS GROUP OF TEXAS LLC; KXAS-TV; NW COMMUNICATIONS OF TEXAS, INC., ON BEHALF OF STATION KDFW FOX 4; AND WFAA-TV, INC.

In this case involving a juvenile, the respondent trial judge ordered the courtroom closed to the public and to members of the media during the juvenile's certification hearing and during the setting for the juvenile's determinate sentence trial. Texas Family Code §54.08(a) mandates that good cause for closing a juvenile proceeding involving a juvenile who is at least 14 years old be shown by evidence on the record. Because the Legislature has mandated that judicial proceedings involving juveniles like R.J.D. who are at least 14 years old shall be open to the public absent good cause shown to exclude the public, it would be nonsensical and would constitute an absurd result to construe other statutory provisions as cloaking the recordings of the two proceedings with confidentiality when there was no good cause shown in the trial court. A writ of mandamus is conditionally granted. Fort Worth Court of Appeals, No. 02-14-00144-CV, 08-12-2014

Practice Areas: Family Law , Juvenile Law

COURT OF APPEALS OF TEXAS, TENTH DISTRICT, WACO

MICHAEL ANTHONY MCGRUDER, Appellant v. THE STATE OF TEXAS, Appellee

The appellant was convicted of the alleged offense of driving while intoxicated, a felony offense, and sentenced to 30 years in prison. Texas Transportation Code §724.012(b) does not authorize that a specimen be taken without compliance with the Fourth Amendment. The statute is not facially unconstitutional. The trial court's judgment is affirmed. Waco Court of Appeals, No. 10-13-00109-CR, 08-14-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, TENTH DISTRICT, WACO

WAYLON CHAZ STANDMIRE, Appellant v. THE STATE OF TEXAS, Appellee

The appellant was convicted of alleged aggravated assault with a deadly weapon. Although no weapon was found, a rational jury could have found, beyond a reasonable doubt, that the appellant used a razor, shank, or another sharp bladed instrument as alleged in the indictment and that the object used was a deadly weapon. Because the admission of a video was based on a witness' personal knowledge of the facts depicted in the video, it was unnecessary for the state to authenticate the video by any other means or methods such as proving the reliability of the system or process. The trial court's judgment is affirmed as modified. Waco Court of Appeals, No. 10-13-00282-CR, 08-07-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

CARL STORCK AND VICKI STORCK, Appellants, v. TRES LAGOS PROPERTY OWNERS ASSOCIATION, INC., Appellee

This appeal involves a dispute between the appellant and a homeowner's association. The trial court was correct in its determination that the instrument containing the association's bylaws is not a dedicatory instrument as defined by Texas Property Code §209.002(4). Because the bylaws have effectively been incorporated into the dedicatory instrument and because the bylaws include a voting restriction which would be invalid if set out directly in the dedicatory instrument, the voting restriction in the bylaws is void. The trial court's judgment is reversed to the extent it found valid an election of the board of directors. The judgment is otherwise affirmed. Texarkana Court of Appeals, No. 06-13-00066-CV, 08-08-2014

Practice Areas: Residential and Commercial Real Estate

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

HUGO FLUELLEN, Appellant v. THE STATE OF TEXAS, Appellee

The appellant contends that the trial court erred in accepting his pleas because he was not properly admonished and his plea was not entered knowingly and voluntarily. There is no evidence in the record to support an inference that the appellant was unaware of the consequences of his plea and a great deal of evidence to show that the appellant knew the range of punishment and automatic life sentences he faced-- for instance, the state's notice and the parties' discussion during the punishment phase made clear that if the enhancement allegation was found true, the appellant would receive an automatic life sentence for each conviction. The trial court's failure to admonish him regarding the range of punishment did not mislead or harm the appellant. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00232-CR, 08-15-2014

Practice Areas: Criminal Law

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

EX PARTE JERRY HARTFIELD;

In this petition for a writ of prohibition, the appellant contends that his constitutional right to a speedy trial has been violated. Even though this case documents what appears to be the longest gap between indictment and trial in any speedy-trial case, because a pretrial habeas proceeding is not an appropriate avenue for raising a speedy-trial claim, the portion of the trial court's order denying the petitions for writ of habeas corpus is vacated. The writ of prohibition is dismissed as moot and a stay in the trial court's proceedings is lifted. Corpus Christi Court of Appeals, NUMBERS 13-14-00238-CV, 13-14-00239-CV, 13-14-00240-CR, NUMBER 13-14-00344-CR, 08-14-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

Susan Combs, in her official capacity as Texas Comptroller, and Greg Abbott, in his official capacity as Texas Attorney General, Appellants v. Texas Small Tobacco Coalition and Global Tobacco, Inc., Appellees

The trial court granted the appellee summary judgment finding that a state tax on tobacco was unconstitutional. The tax, a fee assessed against non-settling manufacturers and not against settling manufacturers, violates Texas's Equal and Uniform Clause. The trial court's judgment is affirmed. Austin Court of Appeals, No. 03-13-00753-CV, 08-15-2014

Practice Areas: Taxation

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

Tom Bennett and James B. Bonham Corp., Appellants v. Larry Wayne Grant, Appellee

The appellants challenge a $2.28 million judgment awarded to the appellee for a successful malicious prosecution claim. Generally a person cannot procure a criminal prosecution when the decision whether to prosecute is left to the discretion of another because the independent exercise of discretion destroys the necessary causal link between the defendant and the prosecution. There are two important exceptions to this rule where a defendant may still be liable for malicious prosecution because his actions are such that it makes an intelligent exercise of discretion impossible: 1. when a defendant provides information which he knows is false that causes a criminal prosecution, or 2. when a defendant's conduct was the determining factor in the prosecutor's decision to prosecute. The trial court's judgment is affirmed conditioned on the appellee filing remittiturs in the trial court decreasing his award of exemplary damages. Austin Court of Appeals, No. 03-11-00669-CV, 08-13-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

In re Texas Education Agency and Michael L. Williams, Commissioner of Education for the State of Texas

The relators, the Texas Education Agency and the Commissioner of Education, filed a petition for writ of mandamus alleging that the district court abused its discretion by issuing temporary restraining orders enjoining the State Office of Administrative Hearings and two administrative law judges from proceeding with a hearing on the charter revocation of a charter school. The charter school is involved in a suit with TEA on the same underlying charter-revocation matters. Delay of the SOAH hearing is not preliminary to the suit, but instead it the complete relief sought by the charter school. There is no viable argument that the TROs should have proceeded without joining a necessary party because of time lost in locating and joining TEA. The commissioner's petition for writ of mandamus is conditionally granted. Austin Court of Appeals, No. 03-14-00496-CV, 08-11-2014

Practice Areas: Education Law

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

ERIC CHRISTOPHER GONZALEZ A/K/A ERIC CHRISTOBAL GONZALEZ, Appellant, v. THE STATE OF TEXAS, Appellee.

The appellant challenges his convictions. The appellant's double jeopardy rights were not violated; Texas Penal Code §38.04(d) indicates legislative intent to allow multiple punishments under the evading arrest statute. The trial court's judgment is affirmed. Corpus Christi Court of Appeals, No. 13-13-00427-CR, 08-14-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

CATHOLIC LEADERSHIP COALITION OF TEXAS, doing business as Texas Leadership Coalition; TEXAS LEADERSHIP COALITION-INSTITUTE FOR PUBLIC ADVOCACY; FRIENDS OF SAFA TEXAS; TEXAS FREEDOM PAC, Plaintiffs-Appellants [...] v. DAVID A. REISMAN, In his official capacity as Executive Director of the Texas Ethics Commission; HUGH C. AKIN, In his official capacity as a member of the Texas Ethics Commission; TOM HARRISON, In his official capacity as a member of the Texas Ethics Commission; JIM CLANCY, In his o [...]

The district court, after determining the case was moot, upheld the constitutionality of all of the challenged provisions of the Texas Election Code regarding general-purpose committees. The treasurer-appointment requirement and the corporate contribution ban are constitutional. The 60-day, 500-dollar contribution and expenditure limit as well as the ten-contributor requirement are facially unconstitutional under the First Amendment. The district court's judgment is affirmed in part, reversed and rendered in part, and remanded. 5th U.S. Circuit Court of Appeals, No. 13-50582, 08-12-2014

Practice Areas: Election and Political Law

COURT OF APPEALS OF TEXAS, TWELFTH DISTRICT, TYLER

IN THE ESTATE OF EDYTHE A. MILLER

The appellant challenges the trial court's denial of his amended claim in the probate proceeding of his mother. The trial court's prejudgment letter provides an extensive explanation of the basis for its ruling, which satisfies the purpose of Texas Rule of Civil Procedure 296. Because he failed to request additional findings and conclusions, the appellant is precluded from complaining of any implied findings presumed on appeal in support of the trial court's judgment. A finding is presumed that the provision in the Agreement for Reimbursement authorizing the appellant to make interest-free loans to himself from the mother's funds benefited the appellant. The trial court's judgment is affirmed. Tyler Court of Appeals, No. 12-12-00363-CV, 08-13-2014

Practice Areas: Trusts and Estates

COURT OF APPEALS OF TEXAS, TWELFTH DISTRICT, TYLER

VICTORIA RAE VANDERPOOL, JANIS CLAIRE STARK, AND RAY TODD VANDERPOOL, APPELLANTS v. BARBARA SHARP VANDERPOOL, APPELLEE

The appellants' grandparents bequeathed a life estate in an undivided one-half of their real and personal property to Ray Leland Vanderpool and the remainder interest to appellants. The property included a family farm and 213 Krugerrands. Ray's interest in the farm was sold by Ray and the appellee, and when a promissory note matured -- after Ray's death -- the appellee did note distribute proceeds to the appellants. Even assuming that an entry in the inventory of Ray's estate is sufficient to provide constructive notice generally, the summary judgment record does not contain Ray's will or any other probate documents that show Appellants qualified as "persons interested" in Ray's estate. Thus, the summary judgment evidence does not show that the appellants had constructive notice of Ray's probate records. The trial court's judgment is reversed in part, affirmed in part, and remanded. Tyler Court of Appeals, No. 12-12-00358-CV, 08-13-2014

Practice Areas: Trusts and Estates