Recent Decisions

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

FAHD SAAD TANASH, Appellant v. THE STATE OF TEXAS, Appellee

The appellant contends the trial court erred in admitting evidence of an extraneous offense. Texas Penal Code §31.03(c) specifically provides that in cases of theft the defendant puts his intent at issue by pleading "not guilty.” The trial court did not abuse its discretion in impliedly determining that the extraneous-offense testimony 1. Was evidence that appellant previously had participated in recent transactions other than, but similar to, that on which the prosecution was based, and 2. Was admissible for the purpose of showing appellant's knowledge or intent. The trial court’s judgment is affirmed. TANASH v. STATE, Houston’s 14th Court of Appeals, No. 14-14-00463-CR, 6/23/15.

14-14-00463-CR
Kem Thompson Frost

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

THE KROGER CO., KROGER TEXAS L.P., AND DAVID MICHAEL WELSH, Appellants v. AMERICAN ALTERNATIVE INSURANCE CORPORATION, AS SUBROGEE OF SPRING VOLUNTEER FIRE ASSOCIATION, Appellee

This appeal arises from a subrogation suit involving a claim by the subrogee of a fire department for damages to a fire truck sustained in a collision with another vehicle. The jury found that the fire department's alleged recklessness did not proximately cause the crash. The jury also found that the fire department was negligent and that the fire department was ten-percent responsible. The trial court granted the subrogee's motion to disregard the latter two findings and rendered judgment for the subrogee for the full amount of damages, without any deduction based on the fire department's percentage of responsibility. The appellants argue that no reporter’s record is necessary; therefore, it is not presumed that the omitted reporter's record is relevant to the disposition of this appeal and supports the trial court's judgment. Because the appellants failed to challenge the ground upon which the trial court disregarded the two jury findings, the trial court’s judgment is affirmed. THE KROGER CO. v. AMERICAN ALTERNATIVE INSURANCE CORP., Houston’s 14th Court of Appeals, No. 14-13-01135-CV, 6/23/15.

14-13-01135-CV
Kem Thompson Frost

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

RICHARD GENE SOLOMON, Appellant v. THE STATE OF TEXAS, Appellee

The appellant argues the identification procedure in this case was impermissibly suggestive because 1. The officer who prepared the array removed facial tattoos from appellant's photo, 2. The detective who administered the procedure informed the complainant that facial tattoos had been removed from the suspect's photo, thereby indicating his photo was included in the array, and 3. The detective raised his voice when presenting appellant's photo, thereby signaling it depicted the suspect. The procedure was not impermissibly suggestive. The trial court’s judgment is affirmed. SOLOMON v. STATE, Houston’s 14th Court of Appeals, No. 14-14-00134-CR, 6/25/15.

14-14-00134-CR
John Donovan

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

SARAH LANSDEN BAKER, Appellant v. MARK MITCHELL BAKER, Appellee

In a divorce, an act by one spouse that is intended to result in bodily injury to the other spouse, and actually results in bodily injury to the other spouse, qualifies as both family violence and physical abuse. The trial court's finding of family violence is sufficient to trigger the effects of Texas Family Code §153.004(b). The trial court could have found a history of physical abuse based solely on an alleged punching incident. In the absence of a presumption that both parents should be named as joint managing conservators, because of the family violence finding, the trial court was required to choose which of the parents, if any, should be named sole managing conservator. The trial court's judgment is reversed in part and remanded for a new trial on the issues of conservatorship, the mother's tort actions, and the division of the community estate. In all other respects, the trial court's judgment is affirmed. BAKER v. BAKER, Houston’s 14th Court of Appeals, No. 14-14-00083-CV, 6/25/15.

14-14-00083-CV
Tracy Christopher

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

DAVIS-LYNCH, INC., Appellant v. ASGARD TECHNOLOGIES, LLC, MANGROVE, INC., TALENT FORCE, INC., PHOENIX OFFSHORE SERVICES, L.L.C., TALENT FORCE TECHNICAL, L.L.C., ASGARD RESOURCES, LLC, ASGARD RESOURCES OF TEXAS, L.L.C., AND ARTHUR P. GRIDER, Appellees

A manufacturing company sued a staffing company after the manufacturing company hired a staffer and she allegedly embezzled millions of dollars. No agency-principal relationship was created in the agreement between the companies giving rise to formal fiduciary duties. Informal fiduciary duties are not owed in business transactions unless the special relationship of trust and confidence existed prior to, and apart from, the transaction at issue. Under the unambiguous terms of the agreement, the staffing company did not have a contractual duty to perform background checks. The staffing company did not conclusively establish that the circumstances foreclosed any duty regarding the retention of the employee after the staffing company became aware of her alleged criminal history of theft. The trial court’s judgment is reversed and remanded as to the negligent retention claim, and is otherwise affirmed. DAVIS-LYNCH INC. v. ASGARD TECHNOLOGIES LLC, Houston’s 14th Court of Appeals, No. 14-13-01112-CV, 6/30/15.

14-13-01112-CV
Martha Hill Jamison

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

OMEGA LOUT, Appellant v. THE METHODIST HOSPITAL, Appellee

The appellant sued for injuries she allegedly sustained after slipping on water that had accumulated on the hospital's floor. There is no evidence that the alleged slip occurred in an area where patients might be during their treatment so that the hospital's obligation to protect patients was implicated by the condition of the floor at that location. Because the record does not show that the appellant’s claim is based on safety standards that have a substantive relationship to the hospital's provision of health care, the trial court erred in concluding that this is a health-care-liability claim and dismissing for failure to file an expert report. The trial court’s order is reversed and remanded. LOUT v. THE METHODIST HOSPITAL, Houstons’ 14th Court of Appeals, No. 14-14-00302-CV, 6/23/15.

14-14-00302-CV
Tracy Christopher

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

TEXAS EAR NOSE & THROAT CONSULTANTS, PLLC, JOSEPH EDMONDS, NEWTON DUNCAN, AND JAMES ALBRIGHT, Appellants v. JOHN K. JONES, M.D., Appellee

A member of a closely-held medical practice sued the practice and the other members alleging breach of the agreements between them. In part, appellants challenge the jury's findings favoring the appellee on his shareholder oppression claims as well as the trial court's buy-out order requiring appellants to pay $277,500 for his interest in the practice. After trial and an original round of briefing, the Texas Supreme Court in Ritchie held that there is no common law cause of action for shareholder oppression and the only available remedy under the shareholder oppression statute is the appointment of a rehabilitative receiver. The trial court’s buyout order is reversed but remanded in the interest of justice. The trial court’s judgment is reversed in part, remanded in part, damages and attorney’s fees based on an alleged breach of contract is reversed and a take-nothing judgment is rendered, and the remainder of the judgment is affirmed as modified. TEXAS EAR NOSE & THROAT CONSULTANTS, PLLC v. JONES, Houston’s 14th Court of Appeals, No. 14-13-00891-CV, 6/25/15.

14-13-00891-CV
Martha Hill Jamison

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

BP OIL PIPELINE COMPANY, Appellant v. PLAINS PIPELINE, L.P., Appellee

The trial court granted the buyer’s summary judgment motion in this dispute between the buyer and the seller of a pipeline system over the scope of a contractual indemnity in the purchase agreement. The parties dispute whether a claim asserted in a separate suit falls within the indemnity, thus requiring the buyer to indemnify the seller for the claim. The claimant does not seek to recover payments owed by the buyer in exchange for the right to use, occupy, or possess real or personal property; rather, the claimant seeks an accounting from the buyer, a co-owner of the tract, for a share of the revenues and profits which the buyer has derived from its use of the pumping station. Because the buyer owned the pumping station and co-owned the tract, the buyer would not owe the claimant "rent" under the agreement because the buyer already had the right to use and occupy the tract, and thus would not need to pay for that right. The trial court’s judgment is reversed and remanded. Court: COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON BP OIL PIPELINE COMPANY, Appellant v. PLAINS PIPELINE, L.P., Appellee

14-13-00352-CV
Kem Thompson Frost

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

ERIC L. BAUMGART, Appellant v. THE STATE OF TEXAS, Appellee

A jury convicted the appellant of five counts of allegedly violating the Private Security Act. The penal code expressly states a public place includes highways and there is no limitation in the statute for a partial and temporary closure. A public place is not converted into private property when a portion of it is temporarily closed to public access. An acquittal is rendered on one of the alleged offenses. A prima facie case of acting as a security services contractor without a license can be made without proof negating the exception. Therefore, the state was not required to negate the exception in the indictments and the trial court did not err in denying the motions to quash. Assuming that the failure to include an application paragraph regarding a statutory exception to an offense is error, that error was harmless, because the jury was required to find appellant was not a law enforcement officer before finding him guilty of the offense. The judgments in four of the causes are affirmed. BAUMGART v. STATE, Houston’s 14th Court of Appeals, No. 14-14-00306-CR, 6/30/15.

14-14-00306-CR, NO. 14-14-00307-CR, NO. 14-14-00308-CR, NO. 14-14-00309-CR, NO. 14-14-00310-CR
Marc W. Brown

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

CRAIG ANTHONY GILDER, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges his conviction for alleged failure to comply with a sex-offender registration requirement. Under Thomas, because there was evidence that appellant was living at a new address as of Jan. 3, 2013, the jury reasonably could have concluded that appellant intended to change address on this date and that he violated Texas Code of Criminal Procedure article 62.055(a) by failing to report this intended address change on or before Dec. 27, 2012. The trial court’s judgment is affirmed. GILDER v. STATE, Houston’s 14th Court of Appeals, No. 14-14-00523-CR, 6/25/15.

14-14-00523-CR
Martha Hill Jamison

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

CODY CARR, Appellant v. THE STATE OF TEXAS, Appellee

The jury received two separate charges and the evidence at trial was limited to evidence of two separate, discrete alleged offenses of aggravated sexual assault of a child. There is no evidence of other actions that occurred at other times that could constitute these offenses and cause the jury to agree that either offense had occurred and disagree on the facts underlying the offense. To convict appellant of either offense, the jury had to agree on the factual elements underlying the conviction. The jury convicted appellant of both offenses. In neither case did the charge allow the jury to reach a non-unanimous verdict. The trial court’s judgment is affirmed. CARR v. STATE, Houston’s 14th Court of Appeals, No. 14-14-00085-CR, 6/23/15.

14-14-00085-CR, NO. 14-14-00087-CR
Kem Thompson Frost

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

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

The relators seek mandamus to vacate an order granting a new trial to the real party in interest. Given the relators' burden to provide the court with a record establishing that the respondent abused his discretion in granting a new trial based on the factual-insufficiency issue and given the absence of any rule analogous in mandamus to Texas Rule of Appellate Procedure 34.6(c), the relators must provide a mandamus record of all of the trial evidence. The writ of mandamus is denied without prejudice. In Re: ATHANS, Houston’s 14th Court of Appeals, No. 14-14-00699-CV, 2/13/15.

14-14-00699-CV
Kem Thompson Frost

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

MEDINA INTERESTS, LTD., Appellant v. William Paul TRIAL, et al., Appellees

A 1949 deed is construed to determine whether the six grantors reserved unto themselves an undivided interest in a fixed royalty or a floating royalty. In the reservation clause, six of the grantors reserved unto themselves an "undivided interest in and to the 1/8 royalties paid the land owner.” The use of the fraction 1/8 reflects the common misconception of that period that the landowner's royalty would always be one-eighth of production obtained under a lease. The 1949 deed expresses the parties' intent that the six grantors reserved an interest in whatever royalty interest is paid to the landowner under any lease, whether present or future, that may be negotiated on the land. The trial court’s judgment is affirmed. MEDINA INTERESTS LTD. v. TRIAL, San Antonio Court of Appeals, No. 04-14-00521-CV, 6/24/15.

04-14-00521-CV
Sandee Bryan Marion

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Charles Arthur WARREN, Appellant v. The STATE of Texas, Appellee

The appellant challenges the denial of his motion to suppress. The trial court is the sole judge of credibility and the weight to be given the witnesses' testimony. The trial court was not required to accept the appellant’s suggestion that he believed he had no choice but to acquiesce to the search. The trial court’s judgment is affirmed. WARREN v. The STATE of Texas, Appellee

04-14-00069-CR
Patricia O. Alvarez

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

CITY OF SAN ANTONIO, Acting through City Public Service Board of San Antonio a/k/a CPS Energy, Appellant v. CASEY INDUSTRIAL, INC., Appellee

An energy company appeals the trial court’s denial of its motion to dismiss the plaintiff’s extra-contractual claims. In order for the trial court to have jurisdiction over a contract claim asserted against a governmental entity, the claimant must establish "the existence of a specific type of contract" under Texas Local Government Code §271.152 and "a demand for certain kinds of damages" as allowed under §271.153. The trial court’s order is reversed and a dismissal is rendered on the claims against the appellant for schedule compression, additional steel costs, steel painting, and miscellaneous costs for reworking another company’s work. CITY OF SAN ANTONIO v. CASEY INDUSTRIAL INC., San Antonio Court of Appeals, No. 04-14-00429-CV, 7/1/15.

04-14-00429-CV
Sandee Bryan Marion

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

IN RE UNIVERSITY OF THE INCARNATE WORD

The relator contends that a discovery order was entered in violation of an automatic stay prompted by the perfection of the relator’s interlocutory appeal from a prior order denying its plea to the jurisdiction. Although the relator could have filed its plea to the jurisdiction during the period of removal to federal court, doing so would not have changed the calculation of its timeliness. The relator is entitled to the automatic stay while its interlocutory appeal from the denial of its plea to the jurisdiction is pending. The writ of mandamus is conditionally issued. IN RE UNIVERSITY OF THE INCARNATE WORD, San Antonio Court of Appeals, No. 04-15-00242-CV, 6/24/15.

04-15-00242-CV
Patricia O. Alvarez

COURT OF APPEALS OF TEXAS, NINTH DISTRICT, BEAUMONT

THE CITY OF CONROE, TEXAS AND J.R. MOORE JR., IN HIS CAPACITY AS THE MONTGOMERY COUNTY TAX ASSESSOR AND COLLECTOR, Appellant v. TPPROPERTY LLC, Appellee

A city appeals the denial of its plea to the jurisdiction. The city complains that the appellee failed to exhaust its exclusive administrative remedies under the Texas Tax Code concerning a disputed Tax Abatement Agreement and failed to establish a waiver of the city's immunity to suit regarding the Tax Abatement Agreement and a Tourism Promotion Services Agreement. The city waived its immunity from suit with respect to the appellee’s contract claims, so far as those claims act as offsets to the city's counterclaims. The trial court’s order is affirmed as modified. THE CITY OF CONROE v. TPPROPERTY LLC, Beaumont Court of Appeals, No. 09-13-00509-CV, 6/25/15.

09-13-00509-CV
CHARLES KREGER

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

THE STATE OF TEXAS, STATE v. ZACHARY PALMER, APPELLEE

An assistant district attorney signed a notice of appeal. The district attorney attempted to perfect the appeal after the expiration of the 21-day deadline. At least under some circumstances, the state may use an affidavit filed after the deadline to prove its assertion that it properly made the appeal in compliance with Texas Code of Criminal Procedure article 44.01(d). White had a "legitimately raised" concern that could be clarified with an affidavit after the expiration of the article 44.01(d) deadline. In the present case, there is no "legitimately raised" concern in the notice of appeal. It is defective on its face. The state’s appeal is dismissed for want of jurisdiction. STATE v. PALMER, Fort Worth Court of Appeals, No. 02-14-00175-CR, 6/25/15.

02-14-00175-CR
ANNE GARDNER

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

IN RE R. WAYNE JOHNSON, RELATOR

After the court of appeals denied the movant’s petition for writ of mandamus, the movant filed a motion seeking recusal of the entire court. The reasons Johnson cites for recusal of all the court's justices are complaints previously raised in response to the disposition of matters filed in the court of appeals. The motion to recuse does not meet Texas Rule of Appellate Procedure 16.3(a)'s requirement that such a motion be filed promptly after the movant has reason to believe that a justice or judge should not participate in deciding the case. Further, the motion to recuse was mailed 15 days after the dismissal of the mandamus proceeding. Nevertheless, considering the motion in the manner described in McCullough, the en banc court finds the motion to recuse is properly denied. IN RE JOHNSON, Amarillo Court of Appeals, No. 07-15-00183-CR, 6/17/15.

07-15-00183-CR

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

DANNY LEE SHEAD, APPELLANT v. THE STATE OF TEXAS, APPELLEE

The participation element of a restricted appeal focuses on a litigant's participation in the "decision-making event" that resulted in the judgment complained of on appeal. It is the fact of nonparticipation, not the reason for it, that determines the right to a restricted appeal. The "decision-making event" in this case was the trial court's decision to deny the appellant’s request that it rescind nunc pro tunc orders to withdraw inmate funds. Other than requesting relief and bringing it to the attention of the trial court, the appellant did not participate in the "decision-making event." The state’s motion to dismiss the appeal is dismissed. SHEAD v. STATE, Amarillo Court of Appeals, No. 07-15-00164-CV, 6/25/15.

07-15-00164-CV, No. 07-15-00165-CV, No. 07-15-00166-CV
Patrick A. Pirtle

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

NANCY ELIZABETH BOWMAN, Appellant v. JERRY DAVIDSON AND DIANA DAVIDSON, Appellees

In accordance with a jury verdict, the trial court entered judgment against the plaintiff in this personal injury case involving a dog bite. There was some evidence to support the jury’s finding against strict liability: the jury heard conflicting evidence about the dog’s aggressiveness and an alleged prior incident. The trial court’s judgment is affirmed. BOWMAN v. DAVIDSON, Texarkana Court of Appeals, No. 06-14-00094-CV, 7/1/15.

06-14-00094-CV
Ralph K. Burgess

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

FRANK KEATHLEY, INDIVIDUALLY AND DBA TOP SHELF ANTIQUES, Appellant v. J.J. INVESTMENT COMPANY, L.T.D., Appellee

The appellant challenges the trial court’s order disbursing funds. Funds no longer in custodia legis were subject to levy. Where the initial suit is brought in a court of limited jurisdiction and the subsequent suit is brought in district court, res judicata bars only those claims that were actually litigated in the lower trial court, and does not bar unlitigated claims that could have been litigated in the lower trial court. The failure of an officer to notify the debtor before executing on his property, standing alone, is insufficient to invalidate a levy of execution. The trial court’s judgment is affirmed. KEATHLEY v. J.J. INVESTMENT COMPANY L.T.D., Texarkana Court of Appeals, No. 06-14-00036-CV, 6/26/15.

06-14-00036-CV
Josh R. Morriss III

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

IN THE INTEREST OF W.C.R. AND I.S.R., CHILDREN

The appellant challenges the trial court’s refusal to lower his child support payments. In support of his motion for reduction of his child support obligation, the appellant testified that two liquor stores in which he had an interest had lost business as a result of competition in neighboring cities that once prohibited the sale of alcohol. admitted that, as a result of his interest in these various business entities, he had a say in what distributions would be made by the entities. The appellant stated that four of the business entities owned property and that his interest in these various entities had value. The appellant owned additional property. The trial court’s judgment is affirmed. IN THE INTEREST OF W.C.R. AND I.S.R., Texarkana Court of Appeals, No. 06-15-00001-CV, 6/1/15.

06-15-00001-CV
Josh R. Morriss

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

IN RE THE ESTATE OF NOBIE FLORENCE PARKER, DECEASED

The testator changed her habit of naming all three of her children as beneficiaries by executing a will naming just her son. The son appeals a finding that the testator lacked testamentary capacity. The evidence supporting the finding includes the testator’s history of diabetes, hypertension, strokes and a heart attack. A doctor who cared for her testified that she seffered from senile dementia and memory problems. A daughter testified that the testator had hallucinations. The trial court’s judgment is affirmed. Court: COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA IN RE THE ESTATE OF NOBIE FLORENCE PARKER, DECEASED

06-14-00099-CV
Josh R. Morriss, III

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

THOMAS LLOYD TAUNTON, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges convictions for the alleged murders of his stepfather and his mother. The affidavits in support of a search warrant failed to disclose any of the "overwhelming evidence and information" mentioned in the affidavits that allegedly tied the appellant to those murders. Almost all of the evidence found in the search was peripheral and cumulative. The evidence produced was inconsequential in effect because the state’s case was very strong, even in its absence. The trial court’s judgment is affirmed. TAUNTON v. STATE, Texarkana Court of Appeals, No. 06-14-00159-CR, 6/19/15.

06-14-00159-CR
Bailey C. Moseley

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

IN THE INTEREST OF E.W., A CHILD

Appellants challenge the termination of their parental rights to a child. Although the trial court may have been well acquainted through previous dealings with the parties with facts that may have supported termination, in order for testimony from a prior hearing or trial to be considered in a subsequent proceeding, the transcript of that testimony must be properly authenticated and entered into evidence. The termination order is reversed and remanded. IN THE INTEREST OF E.W., Texarkana Court of Appeals, No. 06-15-00018-CV, 6/26/15.

06-15-00018-CV
Bailey C. Moseley

COURT OF CRIMINAL APPEALS OF TEXAS

FREDRICHEE DOUGLAS SMITH, Appellant v. THE STATE OF TEXAS

The appellant challenges his conviction and the state appeals the amount of assessed costs. Ex parte Lo held that Texas Penal Code §33.021(b), relating to alleged online solicitation of a minor, is facially unconstitutional. Because it is facially unconstitutional, it was "stillborn" and void ab initio. A judgment of acquittal is rendered for that alleged offense. Regarding court costs, the judgments in three of the state’s petitions are vacated and remanded for reconsideration in light of Johnson. SMITH v. STATE, Court of Criminal Appeals, No. PD-1790-13, 6/24/15.

. PD-1790-13, PD-1791-13, PD-1792-13, PD-1793-13
JOHNSON

COURT OF CRIMINAL APPEALS OF TEXAS

BOBBY JOE PEYRONEL, Appellant v. THE STATE OF TEXAS

Following a communication between a woman and a juror — during which the woman asked how it feels to convict an innocent man — the trial court excluded all members from the gallery for the remainder of the punishment phase. Although the appellant was not required to use magic language to preserve his public-trial complaint for review, he had the burden to state the grounds for the ruling sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. The appellant failed to preserve his public-trial complaint. The court of appeals’ judgment is reversed. PEYRONEL v. STATE, Court of Criminal Appeals, No. PD-1274-14, 6/24/15.

PD-1274-14
Hervey

COURT OF CRIMINAL APPEALS OF TEXAS

BILLY WAYNE SPEIGHTS, Appellant v. THE STATE OF TEXAS

The appellant was convicted of two counts of indecency with a child — one count of indecency by contact and one count of indecency by exposure. On appeal he successfully contended that his conviction for indecency with a child by exposure improperly subjected him to double jeopardy. Texas Penal Code §21.11(a)(1) and §21.11(a)(2)(A) admit of separate allowable units of prosecution (and punishment) for the offense of indecency with a child by sexual contact and the offense of indecency with a child by exposure. When both offenses are committed, they both may be tried, and the defendant may be convicted and sentenced for both in a single prosecution. The court of appeals’ judgment is reversed in part and affirmed. SPEIGHTS v. STATE, Court of Criminal Appeals, PD-0543-14, 7/1/15.

PD-0543-14
YEARY

COURT OF CRIMINAL APPEALS OF TEXAS

RYAN MATTHEW STAIRHIME, Appellant v. THE STATE OF TEXAS

The court of appeals held that the appellant waived his argument — that he was prevented from asking a proper question during jury selection — by not objecting when the trial court called out the names of the jurors and asked if either party had an objection. A reply of "None" or "No, Your Honor," to the question of whether there is an objection to "the seating of the jury," or "to the panel," or "to the jury as selected" at the conclusion of jury selection does not constitute a waiver of any previously preserved claim of error during the voir dire proceedings. The court of appeals’ judgment is reversed and remanded. RYAN MATTHEW STAIRHIME, Appellant v. THE STATE OF TEXAS

PD-1071-14
YEARY

COURT OF CRIMINAL APPEALS OF TEXAS

OSMIN PERAZA, Appellant v. THE STATE OF TEXAS

The court of appeals determined that a cost of court "Related to DNA Testing," assessed pursuant to Texas Code of Criminal Procedure Article 102.020, is an unconstitutional tax that violates the separation of powers clause under the Texas Constitution. If the statute under which court costs are assessed (or an interconnected statute) provides for an allocation of such court costs to be expended for legitimate criminal justice purposes, then the statute allows for a constitutional application that will not render the courts’ tax-gathering function in violation of the separation of powers clause. Article 102.020 is not facially unconstitutional. The court of appeals’ judgment is reversed and the trial court’s assessment of costs is reinstated. PERAZA v. STATE, Court of Criminal Appeals, No. PD-0100-15, 7/1/15.

PD-0100-15 NO. PD-0101-15
RICHARDSON

COURT OF CRIMINAL APPEALS OF TEXAS

ORLANDO SALINAS, Appellant v. THE STATE OF TEXAS

The appellant challenges the constitutionality of consolidated court costs assessed pursuant to Texas Local Government Code §133.102. The court of appeals addressed appellant's arguments under an incorrect standard when it required appellant to also address severability principles and to establish what the funds designated in §133.102 actually do. Demonstrating what the funds actually do is not the same as demonstrating what the governing statutes say about the intended use of the funds. The court of appeals’ judgment is reversed and remanded. SALINAS v. STATE, Court of Criminal Appeals, No. PD-0419-14, 7/1/15.

PD-0419-14
JOHNSON

SUPREME COURT OF TEXAS

CANTEY HANGER, LLP, PETITIONER, v. PHILIP GREGORY BYRD, LUCY LEASING CO., L.L.C., AND PGB AIR, INC., RESPONDENTS

Following the trial court's entry of a divorce decree, one of the divorce litigants sued opposing counsel alleging fraud and related claims in connection with the law firm's alleged preparation of a document to effectuate the transfer of personal property awarded to its client in the decree. The court of appeals held that the firm's alleged conduct was unrelated to the divorce litigation and that the firm had not conclusively established its entitlement to immunity from liability to a non-client for conduct within the scope of representation of its client. The preparation of a bill of sale to facilitate transfer of an airplane awarded to its client in an agreed divorce decree was conduct in which an attorney engages to discharge his duties to his client and was not foreign to the duties of an attorney. An attorney's alleged conduct may be wrongful but still fall within the scope of client representation. The court of appeals’ judgment is reversed and the trial court’s judgment is reinstated. CANTEY HANGER LLP v. BYRD, Texas Supreme Court, No. 13-0861, 6/26/15.

13-0861
Debra H. Lehrmann

SUPREME COURT OF TEXAS

IN RE DAVID DOW, RELATOR-PETITIONER

The Court of Criminal Appeals suspended an attorney from practicing before it for an alleged violation of Miscellaneous Rule 11-003, relating to the timely filing of pleadings in death penalty cases. The Texas Supreme Court lacks jurisdiction to issue mandamus to the Court of Criminal Appeals. Although the Texas Supreme Court has exclusive authority to regulate the practice of law in Texas, this authority is administrative, not jurisdictional. The Court of Criminal Appeals action does not threaten the Texas Supreme Court’s authority to regulate the practice of law. The petition for writ of mandamus is dismissed. IN RE DAVID DOW, Texas Supreme Court, No. 15-0205, 6/26/15.

15-0205

SUPREME COURT OF TEXAS

LAURA BEEMAN AND JANET LOCK, PETITIONERS, v. BRAD LIVINGSTON, IN HIS OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE, RESPONDENT

The appeals court dismissed this suit by inmates alleging that the executive director of the Texas Department of Criminal Justice acted ultra vires because he violated the Texas Human Resources Code by failing to reasonably accommodate their impairment. TDCJ prisons are not "public facilities" under Chapter 121 of the Texas Human Resources Code. The court of appeals’ judgment is affirmed. BEEMAN v. LIVINGSTON, Texas Supreme Court, No. 13-0867, 6/26/15.

13-0867
Phil Johnson

SUPREME COURT OF TEXAS

MCGINNES INDUSTRIAL MAINTENANCE CORPORATION, APPELLANT, v. THE PHOENIX INSURANCE COMPANY AND THE TRAVELERS INDEMNITY COMPANY, APPELLEES

The standard-form commercial general liability insurance policies at issue in this case give the insurer "the right and duty to defend any suit against the insured seeking damages.” In answer to a question certified by the 5th U.S. Circuit Court of Appeals, the Texas Supreme Court concludes that “suit” includes EPA enforcement proceedings brought under the Comprehensive Environmental Response, Compensation, and Liability Act. MCGINNES INDUSTRIAL MAINTENANCE CORP. v. THE PHOENIX INSURANCE CO., Texas Supreme Court, No. 14-0465, 6/26/15.

14-0465
Nathan L. Hecht

SUPREME COURT OF TEXAS

THE BOEING COMPANY AND THE GREATER KELLY DEVELOPMENT AUTHORITY N/K/A THE PORT AUTHORITY OF SAN ANTONIO, PETITIONERS, v. KEN PAXTON, ATTORNEY GENERAL OF TEXAS, RESPONDENT

The Public Information Act exempts from disclosure information "that, if released, would give advantage to a competitor or bidder." The court of appeals concluded that the private party in this case lacked the right or standing to claim this exception because the exception is only for the government's benefit. A private party may assert the exception to protect its competitively sensitive information. The information withheld will benefit the private party's competitors and thus "give advantage to a competitor" of the private party asserting the exception. The court of appeals’ judgment is reversed and rendered. THE BOEING CO. v. PAXTON, Texas Supreme Court, No. 12-1007, 6/19/15.

12-1007
John P. Devine

SUPREME COURT OF TEXAS

EDITH SUAREZ, INDIVIDUALLY AND AS SURVIVING PARENT OF A.S. AND S.S., DECEASED, AND AS SURVIVING SPOUSE OF HECTOR SUAREZ, DECEASED, PETITIONER, v. THE CITY OF TEXAS CITY, TEXAS, RESPONDENT

This interlocutory appeal involves a municipality's plea to the jurisdiction in a premises-liability case arising from the drowning deaths of three family members at a man-made beach. To satisfy the subjective-knowledge component of the gross negligence standard, the governmental entity must have knowledge that the dangerous condition existed at the time of the accident. There is no evidence the municipality knew perilous conditions existed that exceeded those inherently associated with aquatic activities in open water or beyond what would reasonably be expected to exist. The court of appeals’ judgment is affirmed. SUAREZ v. THE CITY OF TEXAS CITY, Texas Supreme Court, No. 13-0947, 6/19/15.

13-0947
Eva M. Guzman

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

EAST TEXAS BAPTIST UNIVERSITY; HOUSTON BAPTIST UNIVERSITY, Plaintiffs-Appellees, WESTMINSTER THEOLOGICAL SEMINARY, Intervenor Plaintiff-Appellee, [...] v. SYLVIA MATHEWS BURWELL, in her official capacity as Secretary of the United States Department of Health and Human Services; THOMAS PEREZ, in his official capacity as Secretary of the United States Department of Labor; JACOB J. LEW, in his official capacity as Secretary of the United States Department of Treasury; UNITED STATES DEPARTMENT OF HE [...]

The plaintiffs, religious organizations, challenge requirements that they either offer their employees health insurance that covers certain contraceptive services or submit a form or notification declaring their religious opposition to that coverage. The district court found that the requirement violated the Religious Freedom Restoration Act. The acts that violate the plaintiffs’ religious beliefs are the acts of the government, insurers, and third-party administrators, but RFRA does not entitle them to block third parties from engaging in conduct with which they disagree. The district court’s judgment is reversed. EAST TEXAS BAPTIST UNIVERSITY v. BURWELL, 5th U.S. Circuit Court of Appeals, No. 14-20112, 6/22/15.

14-20112, No. 14-10241, No. 14-40212, No. 14-10661
JERRY E. SMITH

SUPREME COURT OF TEXAS

BARBARA D. COSGROVE, INDIVIDUALLY AND AS THE TRUSTEE OF THE CHARLES AND BARBARA COSGROVE FAMILY REVOCABLE LIVING TRUST, PETITIONER v. MICHAEL CADE AND BILLIE CADE, RESPONDENTS

The court of appeals held that the discovery rule delayed the accrual of limitations for a deed-reformation claim because a mutual mistake in a deed is a type of injury for which the discovery rule is available. Plainly obvious and material omissions in an unambiguous deed charge parties with irrebuttable notice for limitations purposes. Texas Property Code §13.002 provides all persons, including the grantor, with notice of the deed's contents. The court of appeals’ judgment is reversed and remanded. COSGROVE v. CADE, Texas Supreme Court, No. 14-0346, 6/26/15.

14-0346
Don R. Willett

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

SPEAR MARKETING, INCORPORATED, Plaintiff - Appellant v. BANCORPSOUTH BANK; ARGO DATA RESOURCE CORPORATION, Defendants - Appellees

The plaintiff-appellant brought claims related to the defendants' alleged theft of trade secrets in connection with a software program developed and sold by the appellant. The district court denied the appellant’s motion for remand and dismissed the action with prejudice. The district court was correct to consider only the original petition when deciding the plaintiff’s motion to remand. State law claims based on ideas fixed in tangible media are preempted by 17 U.S.C. §301(a). The district court’s orders are affirmed. SPEAR MARKETING INC. v. BANCORPSOUTH BANK, 5th U.S. Circuit Court of Appeals, No. 14-10753, 6/30/15.

14-10753
WIENER

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellant v. KURT MIX, also known as Kurt E. Mix, Defendant - Appellee

The district court granted a new trial based on the jury's exposure to extrinsic evidence. The appellee, an engineer involved in calculating the amount of oil spilling out of the Deepwater Horizon well, was convicted of obstruction of justice for allegedly deleting a text message exchange between himself and his boss. A juror overheard in a courthouse elevator that other BP employees were being prosecuted. The overheard information lent credence to the government's theory of the case, which was that the appellant allegedly deleted the texts to hide the fact that he knew that he was misrepresenting the flow rate. The district court’s judgment is affirmed. UNITED STATES v. MIX, 5th U.S. Circuit Court of Appeals, No. 14-30837, 6/30/15.

14-30837
EDITH BROWN CLEMENT

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

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

The appellant challenges the district court's denial of federal habeas relief on his claim that he is ineligible to be executed because he is intellectually disabled. Under Briseno, the Court of Criminal Appeals was free to weigh all of the evidence, not just the evidence of the appellant’s limitations and appellant’s expert witness's testimony, in making its factual determination that the appellant failed to meet his burden of proof. The district court’s denial of federal habeas relief is affirmed. HENDERSON v. STEPHENS, 5th U.S. Circuit Court of Appeals, No. 14-70001, 6/30/15.

14-70001
E. GRADY JOLLY

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

HARRIS COUNTY TEXAS; BRAZORIA COUNTY TEXAS, on behalf of themselves and all other similarly situated counties in Texas; DALLAS COUNTY, TEXAS, Plaintiffs - Appellants v. MERSCORP INCORPORATED; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INCORPORATED; BANK OF AMERICA NATIONAL ASSOCIATION, Defendants - Appellees

Texas counties filed suit alleging fraudulent misrepresentation and unjust enrichment against privately held recorders of real property interests. The Declaratory Judgment Act is procedural and does not create an independent private right of action. Texas Local Government Code section 192.007 does not create a duty to record. The counties failed to show reliance and injury to establish their alleged fraudulent misrepresentation claims — further, designating the private recorder as a "beneficiary" of the deeds of trust was not a false representation. The district court’s judgment is affirmed. HARRIS COUNTY TEXAS v. MERSCORP INC.,

14-10392
STEPHEN A. HIGGINSON

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

RALPH S. JANVEY, In His Capacity as Court Appointed Receiver for the Stanford International Bank Limited, et al.; OFFICIAL STANFORD INVESTORS COMMITTEE, Plaintiffs Appellants, v. THE GOLF CHANNEL, INCORPORATED; TGC, L.L.C., doing business as Golf Channel, Defendants Appellees.

The receiver over the assets of a Ponzi scheme discovered payments to a television channel and filed suit to recover $5.9 million. The district court found that, although the payments were fraudulent transfers, the television channel was entitled to judgment as a matter of law on its affirmative defense that it received the payments in good faith and in exchange for reasonably equivalent value. A question is certified to the Texas Supreme Court asking whether market value is sufficient proof of reasonably equivalent value for purposes of the affirmative defense in §24.009(a) of the Texas Uniform Fraudulent Transfer Act. JANVEY v. THE GOLF CHANNEL INC., 5th U.S. Circuit Court of Appeals, No. 13-11305, 6/30/15.

13-11305

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee v. SAN JUANITA GALLEGOS LOZANO, Defendant - Appellant

The appellant, who pleaded guilty to one count of an indictment relating to an alleged conspiracy to defraud Medicare and Medicaid, challenges a restitution order. That count referred to the ”La Hacienda Clinic.” The district court ordered resitution based on losses traceable to two clinics. The defendant did not object. If the order based on the other clinic was error, it was not plain and obvious. Where the factual basis unambiguously defines the temporal scope of the offense of conviction, a district court’s order of restitution based on losses that occurred outside the proper temporal scope is plain error. The restitution order is vacated and remanded. The conviction and sentence are otherwise affirmed. UNITED STATES v. LOZANO, 5th U.S. Circuit Court of Appeals, No. 14-40042, 6/23/15.

14-40042
REAVLEY

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

AMANDA CULBERTSON; JORGE WONG, Plaintiffs - Appellants v. PAT LYKOS; RACHEL PALMER; HARRIS COUNTY, Defendants - Appellees

The plaintiffs sued after being terminated for allegedly making statements critical of the reliability of equipment in breath-alcohol-testing vans. The plaintiffs' claims against a prosecutor based on some of the statements they made after they had left employment at the Houston Police Department and a statement made by a plaintiff just before leaving, satisfied the test for retaliation by the government based on public-employee speech. The plaintiffs allege there was a retaliatory campaign against them and a retaliatory investigation against the grand jury and its prosecutors, all arising from the same predicate events. The alleged retaliatory campaign against them was publicly known, but they offered no evidence that similar retaliation had victimized others. There was no allegation of a "widespread practice" of retaliation that is "so common and well settled" as to constitute the policy of Harris County. The trial court’s dismissals are reversed and remanded in part, the dismissal of retaliation claims against the prosecutor in her individual capacity is affirmed. CULBERTSON v. LYKOS, 5th U.S. Circuit Court of Appeals, No. 13-20569, 6/22/15.

13-20569 c/w No. 13-20751
LESLIE H. SOUTHWICK

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

CAP HOLDINGS, INCORPORATED, doing business as Recovery Management International, Plaintiff - Appellant v. KATHLEEN A. LORDEN; JUSTIN PRUITT; GARY E. HAISLER; URIKA R. MENDOZA; JUDITH C. RUSHING; JOYCE M. STEPHAN, Defendants - Appellees

Property encumbered by a deed of trust held by the Resolution Trust Company was foreclosed upon and sold to a third party in a tax sale, purportedly extinguishing the RTC's lien. The alleged current holder of the deed of trust sued the current owners of the property seeking a declaration that the foreclosure and resulting sale were void for violating 12 U.S.C. §1825(b)(2), which prohibits "property of the" RTC from being foreclosed upon or sold "without the consent of" the RTC. If the sale was conducted in violation of §1825(b)(2), then it is entirely void. Because the district court failed to consider whether the sale's being void would render the defendants without standing under Texas law to assert a limitations defense, the district court's judgment is vacated and remanded. CAP HOLDINGS INC. v. LORDEN, 5th U.S. Circuit Court of Appeals, No. 14-50397, 6/22/15.

14-50397
E. GRADY JOLLY

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

TEST MASTERS EDUCATIONAL SERVICES, INCORPORATED, Plaintiff - Appellant v. STATE FARM LLOYDS, Defendant - Appellee

In the underlying suit that triggered this appeal, the appellant sued a competitor, alleging trademark infringement and various other claims. After the competitor filed an amended counterclaim withdrawing allegations relating to a website map, the appellant’s insurer withdrew its defense, claiming that the amended counterclaim did not allege trade dress infringement, and instead only alleged trademark infringement. The term "trade dress" is not mentioned in the amended counterclaim, and there are no allegations suggesting that the competitor even has a protectable trade dress. For example, there are no allegations describing the content or overall image of the competitor’s website. Moreover, an allegation that the appellant is using a "confusingly similar" website is not sufficient to trigger coverage. The district court’s judgment in favor of the insurer is affirmed. TEST MASTERS EDUCATIONAL SERVICES INC. v. STATE FARM LLOYDS, 5th U.S. Circuit Court of Appeals, No. 14-20473, 6/29/15.

14-20473
STEPHEN A. HIGGINSON

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

GREGORY SAGE, Appellant, v. JAMES R. HOWARD, M.D., Appellee.

The trial court granted a doctor’s summary judgment in the appellant’s suit alleging that the doctor fractured the appellant’s left femur while attempting to treat a "presumed dislocation." The doctor argues that the trial court properly granted the no evidence summary judgment motion because the evidence conclusively established the opposite of the vital fact, that the fracture existed before the doctor attempted the hip reduction. He bases this argument on the x-rays which were made, according to the x-rays' timestamps, before the reduction procedure. An inference can be drawn from the appellant’s testimony that the x-rays were not done before the doctor performed the hip reduction, based on the appellant’s testimony that he would have remembered the pain caused by x-ray plates being placed beneath his hip. The trial court’s summary judgment is reversed and remanded. GREGORY SAGE, Appellant, v. JAMES R. HOWARD, M.D., Appellee.

08-14-00055-CV

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

SANDY R. DUNCAN, Appellant, v. WOODLAWN MANUFACTURING, LTD., Appellee.

An employee appeals a take-nothing judgment in his suit alleging breach of an employment agreement. Even if Texas recognizes a "vital" breach as some distinct common law defense, it would not apply here. Injecting the idea of a "vital breach" into a contract that already comprehensively addresses reasons for termination would only add uncertainty to the parties' dealings. There is legally and factually sufficient evidence which the jury could have believed that the notice and cure provision would have been futile. Futility of curing the defect can defeat strict enforcement of a notice and cure clause. The provisions of the employee handbook also provided the jury a path to find a material breach where no notice and cure provisions might apply. The trial court’s judgment is affirmed. DUNCAN v. WOODLAWN MANUFACTURING LTD., El Paso Court of Appeals, No. 08-14-00025-CV, 6/17/15.

08-14-00025-CV
ANN CRAWFORD McCLURE

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

JACKLYN WORFEL MAYFIELD AND LORI BETH MAYFIELD, Appellants, v. TARRANT REGIONAL WATER DISTRICT, Appellee.

In this suit alleging gender discrimination and retaliation, the plaintiff appeals the grant of the appellee’s plea to the jurisdiction. A single incident of a display of a picture of genitalia in a room full of people of both genders, during which the employee was allowed to leave after her negative reaction, is insufficient to support an allegation of quid pro quo sexual harassment. The facts do not support the plaintiff’s hostile environment claim. With regard to the retaliation claim, the plaintiff’s initial adverse reaction to the picture, without more, does not constitute opposition to a discriminatory act, nor the making of a complaint. The trial court’s grant of a plea to the jurisdiction is affirmed. MAYFIELD v. TARRANT REGIONAL WATER DISTRICT, El Paso Court of Appeals, No. 08-13-00100-CV, 6/10/15.

08-13-00100-CV
SUSAN LARSEN

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

EL PASO INDEPENDENT SCHOOL DISTRICT, Appellant, v. ANNA LUISA KELL, Appellee.

A school district contends that the trial court lacked jurisdiction over the appellee’s whistleblower claim because she invoked the wrong internal grievance procedure necessary to challenge her termination and thus lost her right to judicial review. Texas Education Code Chapter 21 appears to be the only way a term contract teacher may challenge a proposed termination under the Education Code. The applicable procedure, as established by the Education Code and the school district’s own internal policy, was the Chapter 21 hearing procedure. Even if the Whistleblower Act extended the deadlines set by the Education Code, or even if the appellee could have availed herself of the discovery rule to toll the deadline, she never attempted to invoke the Chapter 21 hearing. As such, she lost her right to judicial review under the Act. The trial court’s order is reversed and summary judgment is granted to the school district. EL PASO INDEPENDENT SCHOOL DISTRICT v. KELL, El Paso Court of Appeals, No. 08-14-00056-CV, 6/10/15.

08-14-00056-CV
YVONNE T. RODRIGUEZ

COURT OF APPEALS OF TEXAS, ELEVENTH DISTRICT, EASTLAND

RAFAEL REYES, Appellant v. THE STATE OF TEXAS, Appellee

A jury found the appellant guilty of the alleged offense of evading arrest or detention while using a vehicle. An assertion of new evidence does not entitle the defendant to a new trial if the evidence is merely cumulative or impeaching. The applicable provision to harmonize conflicting 2011 Senate and House amendments is Texas Government Code §311.025(b) because no recent amendment to Texas Penal Code §38.04 reduced the punishment for the offense of evading arrest. The appellant was properly sentenced under Senate Bill 1416's amendment to §38.04. The trial court’s judgment is affirmed. REYES v. STATE, Eastland Court of Appeals, No. 11-13-00206-CR, 6/18/15.

11-13-00206-CR
MIKE WILLSON

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

GREENVILLE AUTOMATIC GAS CO., Appellant v. AUTOMATIC PROPANE GAS AND SUPPLY, LLC AND STEVEN ANDERSON, Appellees

The trial court erred by asking the jury to decide whether the employer proved that the employee, a plaintiff and appellee, agreed to the terms of an employment agreement in this matter involving a covenant not to compete. The appellees never verified this challenge as required by Texas Rule of Civil Procedure 93(7). An amended petition including a proposed verification would have added a new defense to the litigation after the pleading deadline and without seeking leave of court. The terms of the employment agreement were settled by the absence of a verified denial of those terms. An unfair competition claim is a derivative tort that requires a viable underlying tort or other illegal conduct for liability to exist. The trial court’s judgment is affirmed in part, and reversed and remanded in part. GREENVILLE AUTOMATIC GAS CO. v. AUTOMATIC PROPANE GAS AND SUPPLY LLC, Dallas Court of Appeals, No. 05-13-01405-CV, 6/9/15.

05-13-01405-CV
LINDA THOMAS

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

MICHAEL EDWARD DANSBY SR., Appellant v. THE STATE OF TEXAS, Appellee

The appellant contends that the trial court abused its discretion by revoking community supervision and adjudicating his guilt based on evidence that the appellant violated the conditions of community supervision by refusing, during sex-offender treatment, to provide information about his alleged prior history of sexually abusing children. Because the appellant is challenging the trial court’s decision based on his Fifth Amendment right — as opposed to the conditions of his community supervision — estoppel by contract does not apply. The state's threat to revoke a defendant's community supervision for invoking the privilege not to provide information that could tend to incriminate him in a pending or later prosecution violates the constitutional right. The trial court’s order is reversed and remanded. DANSBY v. STATE, Dallas Court of Appeals, No. 05-10-00866-CR, 6/15/15.

05-10-00866-CR
LANA MYERS

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

DAVID FUSARO, Appellant v. TRINITY UNIVERSAL INSURANCE COMPANY, Appellee

The appellant contends that the exclusion claimed by the insurer for denying coverage fails because the injury did not arise from maintenance of a vehicle which was "owned or operated by or rented or loaned to an Insured." The significance of the last clause of the exclusion in dispute is its requirement that the insured have some form of dominion and control over the vehicle. The insured was performing customary acts of maintenance and handling on the motor vehicle loaned to him by his mother when the accident occurred which was normal operation of the vehicle. The trial court’s summary judgment is affirmed in part and reversed and remanded in part. FUSARO v. TRINITY UNIVERSAL INSURANCE CO., Dallas Court of Appeals, No. 05-14-00481-CV, 6/9/15.

05-14-00481-CV
DAVID EVANS

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

THE STATE OF TEXAS, Appellant v. TITAN LAND DEVELOPMENT INC. AND BAUER-HOCKLEY 550, L.P., Appellees

The state appeals in this eminent-domain case involving a dispute over whether the state of Texas timely filed objections to the special commissioners' award after the award was filed with the trial court. Texas Property Code §21.018 serves to ameliorate the effect of an untimely filing by directly linking the period during which a party must object to the date the award is filed. In this way, the party desiring to object has the full time period in which to object even when the award is filed late. Appellees have not cited authority permitting a court to deviate from §21.018's provisions when the party filing the award is the state rather than the commissioners. Thus, courts must enforce §21.018 as it is written, giving either party until the first Monday following the expiration of 20 days after the commissioners' award is filed to object. The trial court’s judgment is reversed and remanded. STATE v. TITAN LAND DEVELOPMENT INC., Houston’s 1st Court of Appeals, No. 1-14-00899-CV, 6/11/15.

01-14-00899-CV
Laura Carter Higley

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

DARYL GREEN, Appellant v. GROCERS SUPPLY CO. INC, Appellee

The county court rendered judgment for writ of possession in favor of the lessor and set an appeal bond. The appellant complains that evidence presented at trial shows there was no default of the lease and he cured any purported default. Under the plain language of the lease agreement as expressed in the county court's findings, if the appellant failed to comply with any provision of the lease agreement and did not cure such failure within 30 days of receiving notice, he would be in default of the lease, and the appellee could terminate the lease. The county court’s judgment is affirmed. GREEN v. GROCERS SUPPLY CO. INC, Houston’s 14th Court of Appeals, No. 14-14-00320-CV, 6/16/15

14-14-00320-CV
Martha Hill Jamison

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

KOJUAN J MILES, Appellant v. THE STATE OF TEXAS, Appellee

A jury found the appellant guilty of allegedly compelling prostitution and alleged sexual assault of the complainant, a 15-year-old girl. The jury assessed punishment at 23 years' and seven years' confinement, respectively, and the trial court cumulated the sentences. The unambiguous language of Texas Penal Code §3.03(b) provides that a sentence for compelling prostitution may not be stacked with a sentence for sexual assault of a child when the offenses arise out of the same criminal episode and are prosecuted in a single criminal action. The trial court’s judgment is affirmed as modified to delete the cumulation order. MILES v. STATE, Houston’s 14th Court of Appeals, No. 14-14-00154-CR, 6/16/15.

14-14-00154-CR, NO. 14-14-00155-CR
Sharon McCally

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

IN THE INTEREST OF M.A.H.T., J.H.T., J.R.T.H., J.I.T.V., B.Z.T.V., Minor Children

The appellant appeals the trial court's order terminating her parental rights to five children. The referring trial court's adoption of the associate judge's First Amended Order of Termination, which disposed of all issues and all parties, was a final appealable order. Although delayed by the trial court's failure to follow proper procedure, appellant's notice of appeal was filed well beyond the 20-day deadline and the further 15-day grace period for seeking an extension of time for filing a notice of appeal. The appeal is dismissed for lack of jurisdiction. IN THE INTEREST OF M.A.H.T., San Antonio Court of Appeals, No. 04-15-00249-CV, 6/17/15.

04-15-00249-CV

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Jose Isabel MARTINEZ-HERNANDEZ, Appellant v. The STATE of Texas, Appellee

The appellant contends the trial court erred in denying his motions to suppress his statements and DNA test results. Questions that are either routine questions incident to booking or seeking physical evidence, and that do not elicit testimonial confessions of guilt, do not constitute interrogation for Miranda and Texas Code of Criminal Procedure article 38.22. The constitutional requirement pertaining to Miranda warnings relates to the substance of the warnings rather than the specific wording. The trial court's judgment is affirmed. MARTINEZ-HERNANDEZ v. STATE, San Antonio Court of Appeals, No. 04-13-00820-CR, 6/17/15.

04-13-00820-CR
Patricia O. Alvarez

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

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

The appellant challenges the sufficiency of the evidence in support of his conviction for alleged serious bodily injury to a child and the trial court's admission at trial of videos showing the child experiencing a seizure and undergoing a medical procedure. That the appellant had been alone with the child at the approximate time the child sustained extremely severe injuries points to appellant as the likely perpetrator. The appellant's explanations of how the child might have been injured evolved over the course of the investigation, which supports an inference of culpable intent. The trial court reasonably could have concluded that the inherent probative force of the videos was considerable, since those videos showed the nature and gravity of the child's injuries. The trial court's judgment is affirmed. MARTINEZ v. STATE, Houston's 14th Court of Appeals, No. 14-14-00009-CR, 6/16/15.

14-14-00009-CR
Martha Hill Jamison

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

HECTOR A. ESPINOZA AND ELIZABETH SANCHEZ, Appellants v. OSIEL LOPEZ, Appellee

The appellants challenge the county court's judgment in a forcible detainer action. Because the evidence raised genuine fact issues regarding title to the Property, the justice court, and county court on appeal, lacked jurisdiction to determine the right to possession. Because the county court's judgment ordered the appellants to pay rent and attorney's fees, this appeal is not moot. The county court's judgment is reversed and the case is dismissed for lack of jurisdiction. ESPINOZA v. LOPEZ, Houston's 14th Court of Appeals, No. 14-14-00846-CV, 6/9/15.

14-14-00846-CV
Ken Wise

Practice Areas: Residential and Commercial Real Estate

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

IN THE INTEREST OF A.L.H., A Child

A mother and father appeal the termination of their parental rights to a child. Evidence that an affidavit of voluntary relinquishment was signed, notarized, witnessed, and executed in compliance with Texas Family Code §161.103 is prima facie evidence of its validity. The trial court's judgment terminating the mother's parental rights to the child is affirmed. The record does not reflect reasonable efforts to return the child in spite of the absence of a family service plan or a waiver of the requirement to make such efforts. The evidence is legally insufficient to support the termination of the father's parental rights under §161.001(1)D. The trial court's judgment terminating the father's parental rights to the child is reversed and termination is denied. The remainder of the judgment, including the appointment of the department as the sole managing conservator, is affirmed. IN THE INTEREST OF A.L.H., Houston's 14th Court of Appeals, No. 14-14-01029-CV, 6/16/15.

14-14-01029-CV, NO. 14-14-01030-CV
Martha Hill Jamison

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

ARGO GROUP US, INC., Colony Management Services, Inc., Colony Insurance Company, Colony National Insurance Company, Colony Specialty Insurance Company, Colony Agency Services, Inc., and Argo Group International Holdings, Ltd., Appellants v. Louis D. LEVINSON, International Financial Group, Inc., Guilford Specialty Group, Inc., Guilford Insurance Company, and The Burlington Insurance Company, Appellees

The trial court denied the appellant’s request for a temporary injunction. A plaintiff seeking a temporary injunction under Texas Business and Commerce Code §15.51 must show a probable, imminent, and irreparable injury in the interim before trial. Even if Texas law allows a court to equitably extend the time period of a covenant not to compete, the plaintiff must still establish the elements necessary to obtain the temporary injunction. The trial court’s denial of the request for a temporary injunction is affirmed. ARGO GROUP US INC. v. LEVINSON, San Antonio Court of Appeals, No. 04-14-00606-CV, 6/10/15.

04-14-00606-CV
Sandee Bryan Marion

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

EX PARTE S.B.M.

The trial court denied the appellant’s petition for expunction. Because the biological matter collected from the complainant and subjected to forensic DNA testing showed nothing — no results were attainable because "insufficient male DNA" existed in the biological matter collected — as a matter of law Texas Code of Criminal Procedure article 12.01(1)(C) does not apply to render the general 10-year sexual assault statute of limitations inapplicable. The trial court’s order is reversed and remanded. EX PARTE S.B.M., Fort Worth Court of Appeals, No. 6/11/15.

02-13-00360-CV
SUE WALKER

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

CHRISTOPHER JODALE COFFMAN, APPELLANT v. THE STATE OF TEXAS, STATE

The appellant argues that trial counsel provided ineffective assistance by allowing him to plead true to the allegations in the motion to adjudicate allegedly without first fully investigating and retaining an expert to evaluate his mental abilities. The appellant was already on deferred adjudication community supervision and had already entered an unchallenged guilty plea controlling the disposition of the case. An appellate court may not simply infer ineffective assistance based upon unclear portions of the record or when counsel's reasons for failing to do something do not appear in the record. The trial court’s judgment is affirmed. COFFMAN v. STATE, Fort Worth Court of Appeals, No. 02-14-00248-CR, 6/11/15.

02-14-00248-CR
LEE ANN DAUPHINOT

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

MATTHEW LEE BARNETT APPELLANT v. THE STATE OF TEXAS STATE

The trial court found that an officer had reasonable suspicion to stop the appellant based on information he had received from fellow officers regarding the appellant’s involvement in the arrests of the appellant’s alleged associates. A global request to suppress “all evidence… collected as a result of the traffic stop” in the appellant’s suppression motion is not specific enough to preserve the argument for review. Despite the appellant’s contention that the only reason the officer gave at the suppression hearing for stopping him was a perceived traffic violation, the officer testified that other cooperating officers had relayed to him specific, articulable facts that, when combined with rational inferences, would have led him to believe that the appellant was involved in the transaction that led to the arrests of the appellant’s alleged associates. The trial court’s judgments are affirmed. BARNETT v. STATE, Fort Worth Court of Appeals, No. 02-13-00609-CR, 6/18/15.

02-13-00609-CR
BILL MEIER

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

CHRISTOPHER SWILLEY, APPELLANT v. THE STATE OF TEXAS, STATE

The appellant challenges his conviction for the alleged felony offense of cruelty to animals. A video recording of an interview with the appellant was admitted without objection and played to the jury. During the video, the interviewer referred to the appellant’s alleged criminal history. Although the appellant complained that the state had violated his motion in limine, generally the granting or denial of a motion in limine is a preliminary ruling only and preserves nothing for appellate review. The trial court didn’t err in denying a motion for mistrial or by giving an instruction to disregard. The trial court’s judgment is affirmed. SWILLEY v. STATE, Fort Worth Court of Appeals, No. 02-13-00569-CR, 6/11/15.

02-13-00569-CR
ANNE GARDNER

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

IN RE S.T.

The relator filed a petition for writ of mandamus in this court seeking relief from a trial court order allowing a suit to adjudicate his paternity of a child to continue in an action joined with a pending divorce and suit affecting parent-child relationship between real parties in interest. One of the real parties, the husband, argues that because spouses have a fiduciary duty to each other — including the duty of full disclosure of facts affecting the marriage — the common law discovery rule applicable to fraud and breach of fiduciary duty cases operated in this case to toll the four-year statute of limitations. The Legislature could have chosen to incorporate the discovery rule into the 2001 and 2003 versions of Texas Family Code 160.607(b), but it did not. Although the Legislature has since allowed for an exception in cases of fraud by misrepresentation, this public policy concern is not frustrated in a case such as this one, in which there is a long-term relationship between the child and presumed father, and the relator's right to rely on the statute of limitations in effect at the relevant time has long since vested. The trial court abused its discretion by including the findings regarding husband's alleged nonpaternity in an agreed Order of Stipulations. The writ is conditionally granted, and the trial court is ordered to delete the stipulation. IN RE S.T., Fort Worth Court of Appeals, No. 02-15-00014-CV, 6/12/15.

02-15-00014-CV
TERRIE LIVINGSTON

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

SHAWN SMITH, Appellant v. THE STATE OF TEXAS, Appellee

The indictment in this case omitted the word "caused" following the alleged mens rea for the alleged offense of causing bodily injury to a child. However, the indictment clearly states that the offense alleged is injury to a child. The omission of the term "caused" was a defect that the appellant was required to raise with the trial court. The state, in the indictment’s count alleging aggravated sexual assault, was required to neither allege the character of the acts or words used by the appellant nor further specify the manner in which the death threats were made. The trial court’s decision to proceed to punishment in the appellant’s absence was not an abuse of discretion — the appellant voluntarily absented himself due to a failed suicide attempt. The trial court’s judgment is affirmed. SMITH v. STATE, Texarkana Court of Appeals, No. 06-14-00156-CR, 6/16/15.

06-14-00156-CR
Jack Carter

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

JACOB T. JONES, Appellant v. SERVICE CREDIT UNION, Appellee

The trial court denied the appellant’s bill of review in this suit alleging that the appellant failed to repay an automobile loan. The appellant is not entitled to a bill of review because he had legal remedies which he ignored: he could have employed Texas Rule of Civil Procedure 306a to raise the arguments he made in his petition for bill of review, or he could have filed a restricted appeal. The trial court’s ruling is affirmed. JONES v. SERVICE CREDIT UNION, Texarkana Court of Appeals, No. 06-14-00077-CV, 6/10/15.

06-14-00077-CV
Ralph K. Burgess

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

VINCENT MONROW FRIEMEL, Appellant v. THE STATE OF TEXAS, Appellee

The appellant asserts that the trial court erred in not admonishing him regarding the consequences of a deadly-weapon finding, thereby rendering his plea involuntary. The written and oral admonitions of the trial court advised the appellant of the correct range of punishment. The appellant failed to show that he did not fully understand the consequences of his plea and that he was misled or harmed by the admonition. Neither Texas Code of Criminal Procedure Article 26.13 nor due process required the trial court to admonish the appellant on the consequences of a deadly-weapon finding. The trial court’s judgment is affirmed. FRIEMEL v. STATE, Texarkana Court of Appeals, No. 6-14-00185-CR, 6/9/15.

06-14-00185-CR
Ralph K. Burgess

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

JOYCE STEEL ERECTION, LTD., Appellant v. GORDON RAY BONNER, Appellee

The appellant challenges the damages award in this personal injury case. “[T]he amount of damages to be recovered by the claimant" under Texas Civil Practice and Remedies Code §33.012 does not exclude damages attributable to a responsible third party. Under Brainard and Battaglia, the settlement credits in this case were required to be applied first to the accrued prejudgment interest as of the date of the settlement payment and then to the principal. The trial court’s judgment is affirmed as modified. JOYCE STEEL ERECTION LTD. v. BONNER, Texarkana Court of Appeals, No. 06-14-00064-CV, 6/17/15.

06-14-00064-CV
Jack Carter

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

Rent-A-Center, Inc., Appellant v. Glenn Hegar, in his capacity as Comptroller of Public Accounts of the State of Texas; and Ken Paxton, in his capacity as Attorney General of the State of Texas, Appellees

The comptroller audited a taxpayer’s franchise tax return for 2008 and assessed a deficiency of over one million dollars because it determined that the taxpayer was not primarily engaged in retail trade and not, therefore, entitled to the one-half-percent tax rate with which the taxpayer calculated its taxes. The taxpayer’s offer of merchandise to customers under rental-purchase agreements is more like selling than leasing and the taxpayer is, therefore, primarily engaged in retail trade. The trial court erred in determining that the taxpayer was not entitled to a refund. The trial court’s judgment is reversed and remanded. Rent-A-Center Inc. v. Hegar, Austin Court of Appeals, No. 03-13-00101-CV, 6/11/15.

03-13-00101-CV
David Puryear

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

DOCTORS HOSPITAL AT RENAISSANCE, LTD. AND RGV MED, LLC, Appellants, v. JESUS JAIME ANDRADE AND JESSICA ANDRADE, Appellees.

The appellants, a limited partnership that owns a hospital and a general partner, filed a motion for summary judgment asserting that they cannot be held vicariously liable for the alleged negligence of a doctor who is a limited partner in the partnership. The statutory prohibition on the practice of medicine by a limited partnership does not mean that a partner must necessarily be acting outside the scope of the partnership's business and without the authority of the partnership when the partner practices medicine. There is at least some evidence that the limited partnership’s "ordinary course of business" includes the practice of medicine by its physician-partners. The trial court’s order denying the motion for summary judgment is affirmed. DOCTORS HOSPITAL AT RENAISSANCE LTD. v. ANDRADE, Corpus Christi Court of Appeals, No. 13-15-00046-CV, 6/18/15.

NUMBER 13-15-00046-CV
DORI CONTRERAS GARZA

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

JAMIE HARVEL AND THE AUSTIN POLICE ASSOCIATION, Appellants, v. TEXAS DEPARTMENT OF INSURANCE-DIVISION OF WORKERS' COMPENSATION, AND COMMISSIONER ROD BORDERLON, IN HIS OFFICIAL CAPACITY, Appellees.

A police officer challenged the denial of his workers’ compensation claim. The officer and a police association appeal the grant of the appellees’ plea to the jurisdiction. The appellants did not address why appellees are proper parties to the officer’s suit for judicial review as distinguished from the appellants's UDJA action. The appellants, in their UDJA suit, seek a declaration of their rights under a statute. Without a legislative waiver, sovereign immunity bars appellants's suit. The pleadings have affirmatively negated jurisdiction because the declarations sought under the UDJA action are duplicative of the suit for judicial review. The association is not afforded an opportunity to replead because the pleadings conclusively demonstrate the absence of a justiciable controversy between the association and appellees. The trial court’s grant of the plea to the jurisdiction is affirmed. JAMIE HARVEL AND THE AUSTIN POLICE ASSOCIATION v. TEXAS DEPARTMENT OF INSURANCE-DIVISION OF WORKERS' COMPENSATION, Corpus Christi Court of Appeals, No. 13-14-00095-CV, 6/11/15.

NUMBER 13-14-00095-CV
NORA LONGORIA

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

REVEREND RESHUNN D. CHAMBERS, TH.M, Appellant, v. AMERICAN HALLMARK INSURANCE CO. OF TEXAS, Appellee.

The plaintiff in this dispute appeals the trial court’s grant of summary judgment in favor of an insurance company. The allegation that the insurer represented that unearned premiums would be returned in the event of early policy termination provided fair notice of the Deceptive Trade Practices Act claim. The appellant expressly pleaded that the insurer made at least two representations: first, that if the insurance terminated prior to the end of the policy period, then the insurer would refund the unearned portion of the premium paid; second, that the insurer maintained business policies and practices that required insureds to fulfill conditions not required by the wording in the policies or the law in order to obtain refunds. These statements were sufficient to plead a claim under the Texas Insurance Code. The trial court’s judgment on the DTPA and Texas Insurance Code claims are reversed and remanded; the remainder is affirmed. CHAMBERS v. AMERICAN HALLMARK INSURANCE CO. OF TEXAS, Corpus Christ Court of Appeals, No. 13-13-00381-CV, 6/11/15.

NUMBER 13-13-00381-CV
NELDA V. RODRIGUEZ

COURT OF CRIMINAL APPEALS OF TEXAS

EX PARTE ROBERTO GONZALEZ DE LA CRUZ, Applicant

The applicant in this application for writ of habeas corpus contends that his conviction in 2000 was procured in violation of his due-process rights as a result of the introduction of false testimony from an eyewitness. The applicant’s claim is premised on a newly available amended autopsy report; and the legal basis, a due-process violation stemming from the state's unknowing use of false testimony, was not established until 2009. The claim was not procedurally defaulted. The new evidence that the victim was shot twice fails to adequately demonstrate that the witness’ testimony was false. Alternatively, if the testimony was false, it would not have been material to the jury's verdict. Habeas relief is denied. EX PARTE DE LA CRUZ, Court of Criminal Appeals, No. WR-76,781-01, 6/17/15.

WR-76,781-01
ALCALA

COURT OF CRIMINAL APPEALS OF TEXAS

Ex parte ALBERTO RODRIGUEZ, Applicant

The applicant, a juvenile at the time of the alleged offense, claims that he was not properly served with a summons to the transfer hearing in the juvenile court. The applicant was personally served with a summons for a transfer hearing, but the timing of that service, in combination with the hearing time and date listed on the summons, rendered the service defective. Under Texas Family Code §51.09, a juvenile may waive such defects. The record must affirmatively show the absence of jurisdiction to justify relief on habeas corpus. Habeas relief is denied. Ex parte RODRIGUEZ, Court of Criminal Appeals, No. WR-58,474-02, 6/17/15.

WR-58,474-02
KELLER

SUPREME COURT OF TEXAS

PLAINS EXPLORATION & PRODUCTION COMPANY, PETITIONER, v. TORCH ENERGY ADVISORS INCORPORATED, RESPONDENT

A judgment awarded restitution of the lease-bonus payments the respondent’s predecessor had paid to secure leases. The respondent claimed an ownership interest in roughly half of the judgment based on the terms of an excluded-assets provision in a 1996 agreement. The court of appeals determined that the term "claim" can refer to "contingent claims," including a claim based on the 1990 Coastal Zone Management Act amendment that was unripe or unaccrued until after the contract's effective date. The dispositive phrases "arising from," "arising under or with respect to," and "attributable to" unambiguously require a pre-effective date causal nexus that does not exist in this case. The court of appeals’ judgment is reversed and rendered. PLAINS EXPLORATION & PRODUCTION CO. v. TORCH ENERGY ADVISORS INC., Texas Supreme Court, No.13-0597, 6/12/15.

13-0597
Eva M. Guzman

SUPREME COURT OF TEXAS

RANDY AUSTIN, APPELLANT, v. KROGER TEXAS, L.P., APPELLEE

The court answers a question certified by the 5th U.S. Circuit Court of Appeals. Subject to two limited exceptions, an employer generally does not have a duty to warn or protect its employees from unreasonably dangerous premises conditions that are open and obvious or known to the employee; under this general rule, the Texas Workers' Compensation Act's waiver of a nonsubscribing employer's common law defenses does not eliminate an employee's burden of proving that the employer owed him a duty as an element of a premises liability claim. Contemporaneous negligent activity by the employer is not necessary to an employee's instrumentalities claim. AUSTIN v. KROGER TEXAS L.P., Texas Supreme Court, No. 14-0216, 6/12/15.

14-0216
Jeffrey S. Boyd

SUPREME COURT OF TEXAS

KACHINA PIPELINE COMPANY, INC., PETITIONER, v. MICHAEL D. LILLIS, RESPONDENT

The trial court declared a natural-gas-purchase agreement entitled the pipeline operator to deduct the costs of compression from its payments to the producer. The court further declared the agreement gave the pipeline operator the option to extend the arrangement for an additional five-year term. The court of appeals reversed. The agreement allows the producer to deduct the costs of compression only if compression is necessary to effect delivery. Although downstream centralization of compression is common and necessary, industry custom cannot impose obligations beyond those within the written agreement. The express language of an option in the agreement does not subject the parties to a new agreement with a new initial term of 5 years. The court of appeals’ judgment is affirmed and remanded. KACHINA PIPELINE CO. INC. v. LILLIS, Texas Supreme Court, No. 13-0596, 6/12/15.

13-0596
Jeffrey V. Brown

SUPREME COURT OF TEXAS

CHESAPEAKE EXPLORATION, L.L.C. AND CHESAPEAKE OPERATING, INC., PETITIONERS, [...] v. MARTHA ROWAN HYDER, INDIVIDUALLY, AND AS INDEPENDENT EXECUTRIX AND TRUSTEE UNDER THE WILL OF ELTON M. HYDER, JR., DECEASED, AND AS TRUSTEE UNDER THE ELTON M. HYDER JR. RESIDUARY TRUST, AND AS TRUSTEE OF THE ELTON M. HYDER JR. MARITAL TRUST; BRENT ROWAN HYDER, INDIVIDUALLY AND AS TRUSTEE OF THE CHARLES HYDER TRUST AND AS TRUSTEE OF THE GEOFFREY HYDER TRUST; WHITNEY HYDER MORE, INDIVIDUALLY AND AS TRUSTEE OF THE E [...]

The trial court rendered judgment for royalty owners, awarding them $575,359 in postproduction costs that the lessee wrongfully deducted from their overriding royalty. The court of appeals affirmed. Heritage Resources holds only that the effect of a lease is governed by a fair reading of its text, it does not hold that a royalty cannot be made free of postproduction costs. “Cost-free" in the overriding royalty provision includes postproduction costs. The court of appeals’ judgment is affirmed. CHESAPEAKE EXPLORATION L.L.C. v. HYDER, Texas Supreme Court, No. 14-0302, 6/12/15.

14-0302
Nathan L. Hecht

SUPREME COURT OF TEXAS

SEABRIGHT INSURANCE COMPANY, PETITIONER, v. MAXIMINA LOPEZ, BENEFICIARY OF CANDELARIO LOPEZ, DECEASED, RESPONDENT

An employee was transporting two employees to a job site when he died in a car accident. The insurer seeks review of a finding that the employee suffered a compensable injury. The employer’s business called for employing specialized, non-local work crews in constantly changing, remote locations on temporary assignments. The decedent’s travel to the job site originated in and furthered the employer’s business, satisfying the statutory definition of "course and scope of employment." Because the employer furnished and paid for the decedent’s transportation, the statutory exclusion in Texas Labor Code §401.011(12)(A) does not apply. The court of appeals’ judgment is affirmed. SEABRIGHT INSURANCE CO. v. LOPEZ, Texas Supreme Court, No. 14-0272, 6/12/15.

14-0272
Paul W. Green

SUPREME COURT OF TEXAS

HARRIS COUNTY FLOOD CONTROL DISTRICT AND HARRIS COUNTY, TEXAS, PETITIONERS, v. EDWARD A. AND NORMA KERR, ET AL., RESPONDENTS

The trial court denied government entities’ pleas to the jurisdiction, and the court of appeals affirmed, in this inverse condemnation case. Because the homeowners presented evidence that the government entities knew unmitigated development would lead to flooding, that they approved development without appropriately mitigating it, and that this caused the flooding, the homeowners have raised a fact issue as to their claim. The court of appeals’ judgment is affirmed. HARRIS COUNTY FLOOD CONTROL DISTRICT v. KERR, Texas Supreme Court, No. 13-0303, 6/12/15.

13-0303
John P. Devine

SUPREME COURT OF TEXAS

MIRTA ZORRILLA, PETITIONER, v. AYPCO CONSTRUCTION II, LLC AND JOSE LUIS MUNOZ, RESPONDENTS

The lower court affirmed an exemplary damages award in excess of the statutory cap because the petitioner did not assert the cap until her motion for new trial. The exemplary damages cap is not a matter constituting an avoidance or affirmative defense and need not be affirmatively pleaded because it applies automatically when invoked and does not require proof of additional facts. The court of appeals’ judgment is reversed in part and judgment is rendered capping the exemplary damages at $200,000, the judgment is otherwise affirmed. ZORRILLA v. AYPCO CONSTRUCTION II LLC , Texas Supreme Court, No. 14-0067, 6/12/15.

14-0067
Eva M. Guzman

SUPREME COURT OF TEXAS

ROBERT VALDEZ, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF PIERRE V. BERNARD, DECEASED, AND FIDELITY AND CASUALTY COMPANY OF NEW YORK, PETITIONERS, [...] v. DAVID HOLLENBECK, INDIVIDUALLY AND AS SUCCESSOR ADMINISTRATOR OF THE ESTATE OF PIERRE V. BERNARD, DECEASED, WILL FRANCES BARON, JOHN BERNARD BARON, BERNARD RAE BERNARD BOX, DARYL BERNARD, MARCUS BERNARD, BARBARA STREFF GRACHEK, PAM STREFF MYERS, STEVE STREFF, SCOTT STREFF, YVONNE BARON FISCHER, ELIZABETH LAMAR, KELLY LAMAR LOEFFELHOLZ [...]

More than a decade after the estate's administration had closed, and more than three years after learning the estate had been significantly undervalued, an intestate's heirs petitioned the probate court by statutory and equitable bills of review to re-open the estate, alleging the estate administrator breached fiduciary duties and fraudulently concealed information about the estate's assets. The court of appeals affirmed judgment in the heirs’ favor. Texas Probate Code §31 unequivocally prescribes a two-year limitations period for all bills of review in probate proceedings. The statute neither provides nor suggests different limitations periods for bills of review in the probate context. The heirs had sufficient information to place them on inquiry notice at least three years before they initiated bill-of-review proceedings. The petition for bill of review was untimely even if limitations were tolled. The court of appeals’ judgment is reversed and rendered. VALDEZ v. HOLLENBECK, Texas Supreme Court, No. 13-0709, 6/12/15.

13-0709
Eva M. Guzman

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRUCE OWENS, Plaintiff - Appellant v. KENNETH M. JASTROW, II; KENNETH R. DUBUQUE; RONALD D. MURFF; CRAIG E. GIFFORD, Defendants - Appellees

The district court dismissed federal securities law claims against four former bank executives, alleging that the executives made materially false and misleading statements regarding the bank’s assets. A district court may best make sense of scienter allegations by first looking to the contribution of each individual allegation to a strong inference of scienter, especially in a complicated case. The court must follow this initial step with a holistic look at all the scienter allegations. Plaintiffs have not raised a strong inference of scienter as to any defendant that is at least as compelling as any opposing inference of nonfraudulent intent. The district court’s dismissal is affirmed. OWENS v. JASTROW, 5th U.S. Circuit Court of Appeals, No. 13-10928, 6/12/15.

13-10928
STEPHEN A. HIGGINSON

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

JOSE MANUEL RODRIGUEZ-AVALOS, Petitioner v. ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Respondent

The Board of Immigration Appeals held that the prison sentence the petitioner served following his conviction for allegedly falsely and willfully representing himself as a United States citizen, in violation of 18 U.S.C. §911, barred him from demonstrating the "good moral character" necessary to be statutorily eligible for relief from removal pursuant to 8 U.S.C. §1229b(b)(1). The unambiguous plain text of 8 U.S.C. §1101(f)(7) renders the petitioner statutorily ineligible for cancellation of removal based on his incarceration in excess of 180 days as a result of conviction, regardless of whether his conviction is categorically a crime involving moral turpitude. The BIA's interpretation of the stop time rule of 8 U.S.C. § 1229b(d)(1) is reasonable. Tthe 10-year period during which a petitioner must establish good moral character for purposes of cancellation of removal is measured backward from the date of the final administrative decision regarding the petitioner's application for cancellation of removal. The petition for review is denied. RODRIGUEZ-AVALOS v. HOLDER, 5th U.S. Circuit Court of Appeals, No. 13-60736, 6/9/15.

13-60736

Practice Areas: Immigration Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

ALBERT WOODFOX, PetitionerAppellee, v. BURL CAIN, Warden, Louisiana State Penitentiary; James Caldwell, RespondentsAppellants.

The district court entered an unconditional writ releasing the petitioner and prohibiting retrial, and it declined to stay its order. The state moves for an emergency stay of the release pending appeal. There is a presumption that a prisoner who has been granted habeas relief is entitled to release from custody, but it is rebuttable. The state is likely to succeed on the merits. The unique and extreme facts of Schuster — in which a defendant was permanently discharged from custody despite the defendant's allegedly clear guilt — are completely inapposite to the case at hand. There is a substantial interest in staying the release of a person, twice convicted of murder, from being released from a life sentence without the possibility of parole. The state's motion for a stay is granted, and the appeal is sua sponte ordered expedited. WOODFOX v. CAIN, 5th U.S. Circuit Court of Appeals, No. 15-30506, 6/12/15.

15-30506
JERRY E. SMITH

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

EDDIE WOOTEN, Plaintiff-Appellee, v. MCDONALD TRANSIT ASSOCIATES, INCORPORATED, Defendant-Appellant.

The appellant, challenging a default judgment, argues that the complaint insufficiently alleged the essential elements of his prima facie retaliation claim. The factual allegations in the complaint need only be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact). Detailed factual allegations are not required, but the pleading must present more than an unadorned, the-defendant-unlawfully-harmed-me accusation. The district court's judgment is affirmed. WOOTEN v. MCDONALD TRANSIT ASSOCIATES INC., 5th U.S. Circuit Court of Appeals, No. 13-11035, 6/10/15.

13-11035
EDWARD C. PRADO

Practice Areas: Appellate Law - Civil

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee v. DAVID HEREDIA-HOLGUIN, Defendant - Appellant

The appellant pleaded guilty to illegal reentry following a previous deportation. After completing his sentence, the appellant was deported. The appellant requests that the remaining term of his supervised release be vacated. The burden is on the appellant to demonstrate that equitable vacatur is appropriate. The deportation consequence was foreseeable and cannot be attributed to happenstance or the unilateral action of the government; the ongoing deterrent effect of supervised release is in the public interest; and the appellant failed to object to supervised release in the first instance. The appeal is dismissed without prejudice and vacatur is denied. UNITED STATES v. HEREDIA-HOLGUIN, 5th U.S. Circuit Court of Appeals, No. 14-10846, 6/16/15.

14-10846
STEPHEN A. HIGGINSON

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

WILLIAM D. CARROLL, JR.; CAROLYN K. CARROLL; PAMELA CARROLL ALONSO, PlaintiffsAppellants, v. SAMERA L. ABIDE; XYZ INSURANCE COMPANY, DefendantsAppellees.

The appellants claim that a bankruptcy trustee violated their Fourth Amendment rights. The district court dismissed the complaint for lack of jurisdiction because the appellants failed to seek leave of the bankruptcy court. When a bankruptcy trustee acts pursuant to an order by the district court, and the trustee's actions pursuant to that order are the basis of the claim, the district court has jurisdiction to entertain a suit with respect to that conduct. The district court's judgment is vacated and remanded. CARROLL v. ABIDE, 5th U.S. Circuit Court of Appeals, No. 14-31230, 6/11/15.

14-31230
PRISCILLA R. OWEN

Practice Areas: Bankruptcy

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

DAVID MCCAIG, Individually and as the Representative of the Estate of Allie Vida McCaig; MARILYN MCCAIG, Plaintiffs - Appellees v. WELLS FARGO BANK (TEXAS), N.A., Defendant - Appellant

A bank appeals a judgment based on a jury verdict finding violations of the Texas Debt Collection Act. Persons who have sustained actual damages from a TDCA violation have standing to sue. There is no targeting requirement for standing under TDCA §392.403(a)(2). The economic loss rule does not bar the appellee’s claims: if a particular duty is defined both in a contract and in a statutory provision, and a party violates the duty enumerated in both sources, the economic loss rule does not apply. Without an actual predicate "contractual right," there is no §392.301(b)(3) defense. The record supports the jury's finding that the plaintiffs suffered compensable mental anguish; expert testimony regarding chest pain suffered by one of the plaintiffs was not required. The district court’s judgment is affirmed in part and vacated and remanded in part. MCCAIG v. WELLS FARGO BANK (TEXAS), N.A., 5th U.S. Circuit Court of Appeals, No. 14-40114, 6/10/15.

14-40114
REAVLEY

Practice Areas: Banking and Financial Institutions

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

MARK ZASTROW; HEIGHTS AUTOHAUS, Plaintiffs - Appellants v. HOUSTON AUTO IMPORTS GREENWAY LIMITED., doing business as Mercedes-Benz of Houston Greenway; GEORGE A. KURISKY, JR.; JOHNSON DELUCA KURISKY; GOULD, P.C., Defendants - Appellees

The appellant brought civil RICO claims against the appellee, alleging that the appellee threatened him to prevent his testimony in an arbitration and retaliated against him by refusing to sell him autoparts. The appellee’s termination of dealings with the appellant cannot be construed as threats to prevent his live testimony in the arbitration hearing because there was no threat of further penalty — the dealership unequivocally terminated its business with the appellant because of his deposition testimony, it did not make future dealings contingent on his absence at the hearing (or indicate in any way that it would reconsider its decision if the appellant did not testify). There was no evidence supporting the continuity requirement, and no evidence of an enterprise. The district court’s summary judgment on the RICO claim is affirmed, the judgment on a non-employment retaliation §1981 claim is vacated and remanded. ZASTROW v. HOUSTON AUTO IMPORTS GREENWAY LIMITED, 5th U.S. Circuit Court of Appeals, No. 14-20359, 6/12/15.

14-20359
EDITH BROWN CLEMENT

Practice Areas: White Collar Crime , RICO

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JUAN MORALES-RODRIGUEZ, Defendant-Appellant.

The appellant argues that the government impermissibly withheld an additional offense-level reduction for acceptance of responsibility. The argument is reviewed for plain error because the appellant did not raise the issue at the district court. The appellant postulates that that the government withheld the additional reduction because he preserved his right to appeal. That the appellant had a written plea agreement with the waiver provision crossed out does not make the alleged error clear and obvious. The district court’s decision is affirmed. UNITED STATES v. MORALES-RODRIGUEZ, 5th U.S. Circuit Court of Appeals, No. 13-10364, 6/9/15.

13-10364

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

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

The appellant challenges her conviction for allegedly transporting, allegedly attempting to transport, and allegedly engaging in a conspiracy to transport an alien within the United States for private financial gain. A permissible waiver of the right of confrontation is not contingent on evidence that the defendant affirmatively agreed to counsel's stipulation; she just must not dissent from that decision. Stephens, holding that counsel in a criminal case may waive his client's Sixth Amendment right of confrontation by stipulating to the admission of evidence, remains binding in the 5th Circuit. The conviction is affirmed. UNITED STATES v. CEBALLOS, 5th U.S. Circuit Court of Appeals, No. 13-50786, 6/16/15.

13-50786
EDWARD C. PRADO

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

ALVIN JACKSON, Plaintiff - Appellant v. FRISCO INDEPENDENT SCHOOL DISTRICT, Defendant - Appellee

The appellant brought claims against a school district alleging that the district discriminated against him because of his race and retaliated against him for reporting such claimed discrimination. The district court ruled that the appellant established a prima-facie case for racial discrimination and retaliation, but that he failed to show a genuine dispute of material fact regarding the requirement that he show pretext on the part of the school district for unlawful discrimination or retaliation. The school district conceded that there was a genuine dispute of material fact on pretext at the level of an associate principal. When a person with alleged discriminatory animus has influence over the final decisionmaker, that alleged animus may be imputed to that decisionmaker. The district court’s judgment is affirmed in part, reversed in part, and remanded.

14-40371
RHESA HAWKINS BARKSDALE

Practice Areas: Labor and Employment