Recent Decisions

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

WILLIAM ADRIAN ROBERTS, APPELLANT v. THE STATE OF TEXAS, STATE

The appellant argues that the trial court erred in denying his motion to suppress. The vehicle had an expired registration and there was no proof of financial responsibility; therefore, the vehicle could not be driven legally. The appellant did not have a valid driver's license. The trial court did not err by finding the impoundment here reasonable under either the police department's policy or the totality of the circumstances. The state established that an inventory policy existed, and the trial court could have concluded from an officer's testimony that the pull card was completed as required and that the impoundment was not a mere ruse to search the vehicle. The trial court's judgment is affirmed. Fort Worth Court of Appeals, No. 02-12-00405-CR, No. 02-12-00406-CR, 09-18-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

IN RE E.C., F.C., T.C., AND CLEBURNE METAL WORKS, LLC D/B/A CLEBURNE SHEET METAL, RELATORS

The relators argue that the trial court abused its discretion by overruling their assertions of confidentiality and privilege and ordering them to produce documents from a clinical psychologist who was hired as a consultant by defense attorneys in a juvenile proceeding. The real parties are not attempting to "use" the psychologist's file, under Texas Family Code §51.13, because they are not attempting to admit it in some proceeding for some purpose; rather, the real parties are merely trying to discover it pretrial. "Records and files concerning a child" in §58.005(a) are those records and files in the possession of or belonging to the same individuals or entities identified throughout the subchapter; the statute is here inapposite. The trial court could have reasonably concluded that privilege was waived as to the psychologist's file or opinions when his testimony on those matters was elicited in open court at the prior disposition hearing. The petition for writ of mandamus is denied. Fort Worth Court of Appeals, No. 02-14-00235-CV, 09-16-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS, NINTH DISTRICT, BEAUMONT

GOLDEN CORRAL CORPORATION D/B/A GOLDEN CORRAL AND CORRAL GROUP, INCORPORATED, Appellant v. CYNTHIA TRIGG, Appellee

The appellant contends the warning they provided to their customers concerning the presence of liquid on the floor in their restaurant discharged the duty they owed their invitees as a matter of law. Surveillance video shows that the sign was placed in a location where it could be seen by customers warning of the hazard posed by the wet floor. The evidence conclusively established that the restaurant warned of the wet floor and that the warning was adequate. The trial court's judgment is reversed and a take-nothing judgment is rendered. Beaumont Court of Appeals, No. 09-13-00088-CV, 09-04-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

DONALD R. CAIN, Appellant v. PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY, Appellee

This is an appeal from a summary judgment dismissing the plaintiff's claims against an insurer under an automobile insurance policy. "Renewal insurance policy," as used in Texas Insurance Code §§1952.101(c) and 1952.152(b), includes each new successive insurance policy in an unbroken chain of coverage going back to the initial policy as to which uninsured motorist coverage and personal injury protection coverage was rejected by an insured named in the insurance policy. The insurer was not required to provide either UIM Coverage or PIP Coverage, and the trial court did not err in granting summary judgment. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-00954-CV, 09-18-2014

Practice Areas: Insurance Law

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

GERALD LYNN CLARK AND JO ANN CLARK, Appellants v. TITUS COUNTY, TEXAS, Appellee

Property owners appeal the value of a taking. The appellants challenge the county's argument that there was no evidence of market value. The county's appraisal and a property owner's affidavit with its attached fence estimate constituted more than a scintilla of evidence of fair market value of the subject property before the taking and a market-value alternative to that suggested by the appraiser. The trial court's judgment is reversed and remanded. Texarkana Court of Appeals, No. 06-14-00035-CV, 09-19-2014

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

WILLIAM R. AND SUSAN M. KNODERER, Appellants v. STATE FARM LLOYDS, PENNI PERKINS AND TOM ROBERTS, Appellees

The plaintiffs, insureds, appeal discovery sanctions against them. The trial court impliedly found that six fitting photographs were fabricated and that evidence concerning the fabrication was destroyed, however, the death penalty sanctions in this case fail to survive either the relationship test or the proportionality test. The plaintiffs' general challenge to the sanction award successfully assigned for review the issue of the excessiveness of the monetary sanctions; an appellant is not required to advance a perfect legal argument and, when an appellant raises only a general challenge, specific arguments are generally considered subsidiary questions fairly included in the general challenge. The trial court abused its discretion in the award of attorneys' fees, expert fees, and costs for the entire case, rather than those related only to the sanctionable conduct. Sanctions against the wife were error: an agency relationship wasn't proved, and no persuasive authority was provided for the proposition that a wife has a duty to prevent her husband from allegedly destroying evidence. The trial court's judgment is reversed and rendered. Texarkana Court of Appeals, No. 06-13-00027-CV, 09-19-2014

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

$1,608.00 IN U.S. CURRENCY AND 2008 MAZDA, VIN 1YVHP80C385M37457, Appellants v. THE STATE OF TEXAS, Appellee

The appellant challenges a default judgment ordering forfeiture of property including an automobile. The trial court granted the state's motion for a new trial, but outside the usual time of plenary authority. During the requisite 30-day time period for a motion for new trial, the appellant filed pleadings in which he asked in several ways for the trial court to reconsider or correct its default judgment against him, based largely on the failure of service of process on him. These pleadings are interpreted as a motion for new trial, extending the plenary authority of the trial court to 105 days after the judgment. The appeal is dismissed. Texarkana Court of Appeals, No. 06-14-00066-CV, 09-19-2014

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

QURAN BRYANT, STEPHEN A. BARFIELD, AND GRACE EVERETT, Appellants v. DENNIS J. CADY, IND. AND AS TRUSTEE OF THE DENNIS J. CADY LIVING TRUST D/B/A CADY ENTERPRISES, Appellee

The appellants, who claim to be purchasers under regulated executory contracts, challenge a summary judgment holding that none of the transactions involved an executory contract. Where two instruments are executed as part of the same transaction, the consideration given in one may support collateral promises made in the other. The agreements are, in effect, options to purchase and, given that they were executed concurrently with residential leases, are executory contracts within the meaning of the statute. Texarkana Court of Appeals, No. 06-14-00007-CV, 09-18-2014

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

Dr. Andrew J. Wakefield, MB, BS, Appellant v. The British Medical Journal Publishing Group, Ltd.; Brian Deer; and Dr. Fiona Godlee, Appellees

The appellant challenges the dismissal of his alleged defamation suit. The anti-SLAPP statute suggests that a defendant may be able to maintain its right to challenge personal jurisdiction under Texas Rule of Civil Procedure 120a while simultaneously pursuing its rights under the anti-SLAPP statute. The defendants did not seek out affirmative relief inconsistent with their assertion that the court lacked personal jurisdiction. The defendant's request for a single judge and a request to continue the hearing on their anti-SLAPP motion were not waivers of the special appearances. Even if participation in discovery may constitute a waiver in some circumstances, here there was no waiver by participating in discovery; defendants opposed discovery and only participated in the discovery processes once the trial court ordered the discovery. The record contains no evidence that the allegedly defamatory articles, whether published in print or made available on-line, were directed or aimed at Texas, a forum which has no relationship to the subject matter of the articles or to any underlying sources. The trial court's judgment is affirmed. Austin Court of Appeals, No. 03-12-00576-CV, 09-19-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

In re Richard "Opey" Watkins

The relator asks for a writ of mandamus compelling election officials to certify and place his name on a ballot. Late-filed paperwork should be accepted in the interest of the candidate, who had no fault in the missed deadline, and the voters, who have a significant interest in ballot access and electing candidates of their choosing. Absent a determination by an appropriate authority that a candidate's certification was unlawful, the county clerk's duty to place the certified replacement nominee on the ballot is fixed. The writ is conditionally granted. Austin Court of Appeals, No. 03-14-00542-CV, 09-16-2014

Practice Areas: Election and Political Law

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

Hunt County Community Supervision and Corrections Department, Appellant v. Christina Gaston, Appellee

This is an appeal of a trial court order denying a plea to the jurisdiction in a whistleblower suit. A claimant's belief that a reported-to authority is empowered to ensure internal legal compliance within a governmental entity cannot, in itself, amount to an objectively reasonable belief that the authority is empowered to "regulate under" or "enforce" the relevant law, or to "investigate or prosecute a violation of criminal law," in the sense intended by the Whistleblower Act. Absent pleadings or proof that the specific alleged Texas Code of Criminal Procedure article 42.12 "violations" the whistleblower claimant reported to a district judge concerned probationers over whom the judge exercised jurisdiction, or that the whistleblower has any reasonable basis to believe that they did, the burden of demonstrating an objective good faith belief that the district judge is an appropriate law enforcement authority was not met. The suit is dismissed for want of subject-matter jurisdiction. Austin Court of Appeals, No. 03-13-00189-CV, 09-18-2014

Practice Areas: Labor and Employment

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

ANTHONY FERNANDO STRANGE, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges a search warrant and the evidence supporting the verdict. The warrant commands the executing officer to "enter the suspected vehicle" and then describes premises to be searched. The scope of the warrant can be determined by examining the warrant and the attached affidavit. Each describes, in great detail, the location of a dwelling -- a single-family habitation with attached garage. The trial court did not err in admitting evidence seized during the search. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00178-CR, 09-18-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

Ex parte RONALD THOMPSON, Appellant

Appellant filed a pretrial application for a writ of habeas corpus, in which he alleged that the statute on which his prosecution was based is facially unconstitutional in violation of the First Amendment. The court of appeals held that Texas Penal Code §21.15(b)(1) is void on its face in violation of the First Amendment. A person's purposeful creation of photographs and visual recordings is entitled to the same First Amendment protection as the photographs and visual recordings themselves. Section 21.15(b)(1), to the extent it proscribes the taking of photographs and the recording of visual images, is unconstitutional on its face in violation of the Free Speech clause of the First Amendment. The court of appeals' judgment is affirmed. Court of Criminal Appeals, No. PD-1371-13, 09-17-2014

COURT OF CRIMINAL APPEALS OF TEXAS

EX PARTE HANNAH RUTH OVERTON, Applicant

The habeas applicant alleges ineffective assistance of counsel. The decision to not present an expert's testimony that would have directly supported applicant's defense and refuted much of the state's evidence was objectively unreasonable. The applicant's conviction is reversed and remanded for new trial. Court of Criminal Appeals, No. WR-75,804-02, 09-17-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

Ex parte KENDRICK MABLE

The applicant pleaded guilty to possession of a controlled substance and was sentenced to two years' imprisonment pursuant to a plea bargain. He did not appeal his conviction. Shortly thereafter, a forensic lab finished testing the seized substances and discovered that they did not actually contain any illicit materials. A guilty plea must be entered knowingly and voluntarily. The defendant must have sufficient awareness of the relevant circumstances. All parties involved, including the applicant, incorrectly believed the applicant had been in possession of drugs. While operating under such a misunderstanding, the applicant cannot be said to have entered his plea knowingly and intelligently. The judgment is set aside and the applicant is remanded to answer the charge against him. Court of Criminal Appeals, No. WR-81,358-01, 09-17-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

ELISA MERRILL WILSON, Appellant v. THE STATE OF TEXAS

The court of appeals acquitted the appellant of her alleged telephone-harassment conviction. The phrase "repeated telephone communications" in Texas Penal Code §42.07(a)(4) does not require the communications to occur within a certain time frame in relation to one another; a statement in Scott interpreting the term "repeated" is dicta. A facially legitimate reason for the communication does not negate per se an element of the statute. The court of appeals' judgment of acquittal is reversed and remanded. Court of Criminal Appeals, No. PD-0755-13, 09-17-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

STEPHANIE LYNN BEKENDAM, Appellant v. THE STATE OF TEXAS

In this alleged driving while intoxicated case, the court of appeals held that the trial court did not abuse its discretion in admitting the testimony of a Department of Public Safety forensic scientist who tested a blood sample and issued the toxicology report. The appellant argues that the state failed to prove by clear and convincing evidence that the expert's testimony regarding a trace of cocaine was reliable and relevant and that the trial court abused its discretion in allowing her to testify about the trace and to rely on it in formulating her opinions. The toxicology report did not include the trace amount of cocaine because it was below the reportable cutoff allowed by DPS laboratory policy. When dealing with this type of evidence, a relevance objection raises the question of whether the testimony is sufficiently reliable and thus relevant to be admitted. The expert testifying to an amount that is too small to be included in the report does not equate to using her own methods of testing or interpretation. The court of appeals' judgment is affirmed. Court of Criminal Appeals, No. PD-0452-13, 09-17-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

ROMAN RAMIREZ-MEMIJE, Appellant v. THE STATE OF TEXAS

The court of appeals reversed and remanded the appellant's conviction for alleged fraudulent possession of identifying information. The appellant argues that his possession of a credit card skimmer was not a voluntary act because he did not know that the skimmer contained identifying information. Appellant knowingly received the skimming device and knew that he was transferring the device. This satisfies the requirement of a voluntary act under Texas Penal Code §6.01. Evidence of appellant's lack of knowledge goes to mens rea upon which the jury was properly instructed. The court of appeals' judgment is reversed and remanded. Court of Criminal Appeals, No. PD-0378-13, 09-17-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

LITREY DEMOND TURNER, Appellant v. THE STATE OF TEXAS

The appellant filed a petition for discretionary review contending that he is entitled, under the rationale of Miller, to an individualized sentencing hearing with a sentencing range of between 5 and 99 years to life. The appellant is not entitled to an individualized sentencing hearing. He is only entitled to have his sentence reformed from life without parole to life with the possibility of parole. The court of appeals erred in remanding this case to the trial court for a new sentencing hearing. The judgments of the trial court and court of appeals are affirmed as modified. Court of Criminal Appeals, No. PD-1354-13, 09-17-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

EDWARD CHIARINI, Appellant v. THE STATE OF TEXAS

The appellant challenges the legal sufficiency of the evidence supporting his conviction for allegedly of unlawfully carrying a weapon under Texas Penal Code §46.02. The appellant,the owner of a condominium unit, carried a handgun in the common area of the condominium complex. Appellant's undivided ownership interest in the common area of the condominium complex made the common area appellant's "own premises" under the UCW statute. Because appellant was carrying a handgun on his own premises, he did not violate §46.02. The court of appeals' judgment is affirmed. Court of Criminal Appeals, No. PD-1323-13, 09-17-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

AGHAEGBUNA ODELUGO, Appellant v. THE STATE OF TEXAS

The court of appeals held that the trial court abused its discretion by denying a motion for new trial based on an alleged conflict of interest on the part of the defendant's trial counsel. At the trial court's hearing on the motion, trial counsel, accused of having misappropriated certain funds entrusted to him by his client, invoked his Fifth Amendment right. The trial court, as the finder of fact on a motion for new trial, retains the prerogative to believe or disbelieve any evidence the probativeness of which depends on the credibility of its source-regardless of whether that evidence was "controverted" by the opposing party. When, as in this case, the trial court's ruling on a motion for new trial is supported by at least one reasonable view of the record, the ruling may not be disturbed. The court of appeals' judgment is reversed and remanded. Court of Criminal Appeals, No. PD-1198-13, 09-17-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

JOSE ANGEL BEDOLLA, Appellant v. THE STATE OF TEXAS

The court of appeals agreed with the state that appellant's issue, that the trial court failed by not including a self-defense instruction, was not preserved for review because appellant did not specify his self-defense theory as self-defense with deadly force, and there was evidence that appellant used both non-deadly and deadly force. The court of appeals focused on contextual extraneous-offense evidence and not evidence of the charged offense. Only deadly-force self-defense would have justified the appellant's conduct of aggravated assault with a deadly weapon as charged in the indictment. There would be no reason for appellant to request an instruction on a defense to conduct with which he was not even charged. The court of appeals' judgment is reversed and remanded. Court of Criminal Appeals, No. PD-0737-13, 09-17-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

JERRY L. BERWICK, Appellant v. RICHARD T. WAGNER, Appellee

This appeal concerns issues related to a Suit Affecting the Parent Child Relationship. The trial court correctly recognized that the appellant and appellee had each already been adjudicated C.B.W.'s parents by the California Judgment of Paternity, and the trial court properly gave full faith and credit to that California judgment. Nothing under Texas law supports the argument for applying a presumption in favor of a biological "parent" over a parent acquiring "parent" status through other legal channels (be it adoption, presumption, or assisted reproduction). The trial court did not abuse its discretion in finding jurors disqualified who unequivocally indicated that they held such strong convictions concerning homosexuality that they could not base their decisions on the law and evidence. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-12-00872-CV, 09-11-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

LARRY DAVIS INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF MATTHEW DEWAYNE SMITH, DECEASED, Appellant, v. RODGER CLIFTON BILLS, JR., AND BIG D CONSTRUCTION CO., LTD., Appellees.

The appellant challenges the trial court's order dismissing his suit for lack of jurisdiction. Appellant is the decedent's grandfather and he was the managing conservator of his grandson during his minority. However, a person standing in loco parentis is not a child's parent for purposes of a wrongful death action. The trial court did not err in granting the appellees' plea to the jurisdiction because as the decedent's grandfather, the appellant lacked capacity to assert the claims brought in this suit and appellant did not assert any claims on behalf of the estate of the decedent. The trial court's order is affirmed. El Paso Court of Appeals, No. 08-12-00313-CV, 09-12-2014

Practice Areas: Torts

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

RALPH S. JANVEY, Plaintiff Appellee v. JAMES BROWN; ROBERT BUSH; GENE CAUSEY; JOSEPH CHUSTZ; DARRELL COURVILLE; ET AL; THOMAS H. TURNER; TARRAL E. DAIGLE; JEFF P. PURPERA, JR.; DANIEL JOSEPH DAIGLE; JILDA ANN DAIGLE; ROBERT S. GREER; ALICE D. GREER; GMAG, L.L.C.; GARY D. MAGNESS IRREVOCABLE TRUST; GARY D. MAGNESS; MAGNESS SECURITIES, L.L.C.; DAVID TOPP; DORA TOPP; RISIA TOPP WINE; HENRY A. MENTZ, III, Defendants Appellants;

In this Texas Uniform Fraudulent Transfer Act case, plaintiff-appellee, a receiver, seeks to recover funds that were paid to defendants-appellants, purchasers of certificate of deposits from Stanford International Bank, Ltd., as part of a Ponzi scheme. The 'false conflicts' analysis compels the conclusion that TUFTA applies to the receiver's claims. The district court's decision to allow clawback of interest payments is affirmed. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-10266 Consolidated with 13-10272, Consolidated with 13-10276, Consolidated with 13-10279, 09-11-2014

Practice Areas: Securities and Federal Corporate Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

JERRY L. STARKEY, TBDL, L.P., AND PBW DEVELOPMENT CORPORATION, Appellants/Cross-Appellees v. GLEN GRAVES, Appellee/Cross-Appellant

When the relationship between the companies and individuals involved in a limited partnership broke down, a limited partner sued the other partners and their owner, alleging that they breached successive partnership agreements and committed or conspired to commit statutory and common-law fraud and breaches of the duties of loyalty and care. The award of actual damages is affirmed under some of the jury findings but the award of expert fees and deposition costs is reversed because no evidence supports the statutory-fraud finding. The issue of attorneys' fees is remanded. Houston's 14th Court of Appeals, No. 14-12-00633-CV, No. 14-12-00709-CV, 09-11-2014

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

GREENBERG TRAURIG, LLP, Appellant v. NATIONAL AMERICAN INSURANCE COMPANY AND OKIE FOUNDATION DRILLING CO., INC., Appellees/Cross-Appellants v. FISHERBROYLES, LLP AND RUSSELL DEPALMA, Cross-Appellees

This appeal primarily concerns the enforceability of an arbitration provision in an attorney's retainer agreement with National American Insurance Co. and Okie Foundation Drilling Co. Inc. The attorney did not have a fiduciary duty, in spite of its longstanding relationship with NAICO, to disclose the implications of an arbitration provision in a retainer agreement for a new representation. Because Okie insists that the attorney allegedly violated various duties owed to Okie as a client, it cannot avoid the arbitration provision in the agreement providing for Okie's legal representation. The trial court's order is reversed and remanded ordering all parties to arbitrate. Houston's 14th Court of Appeals, No. 14-14-00047-CV, 09-11-2014

Practice Areas: Alternative Dispute Resolution , Arbitration (ADR)

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

HALLIBURTON COMPANY, Appellant v. KBR, INC., Appellee

The appellant challenges the trial court's order denying its application to compel the appellee to arbitrate all aspects of the dispute before a single accounting referee, as provided in the parties' Tax Sharing Agreement. Despite ordering arbitration to proceed under the Master Service Agreement, the trial court specifically denied the appellant's asserted contractual right to arbitrate under the terms of the TSA; the trial court's order is appealable under Federal Arbitration Act §16. The MSA and the TSA must be harmonized and construed together as one contract. When the agreements are read as one contract, entered into to effectuate a singular transaction, the TSA's silence regarding arbitrability reinforces the application of the MSA's arbitrability clause to arbitration sought under the TSA. The trial court's order denying the motion to compel is affirmed. Houston's 1st Court of Appeals, No. 01-12-00949-CV, 09-11-2014

Practice Areas: Alternative Dispute Resolution , Arbitration (ADR)

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

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

The appellant challenges the termination of her parental rights. The appellant filed her affidavit of indigence a week before the trial setting. The commencement of trial was a critical stage of the termination proceedings, at which the indigent mother was not represented by counsel. The trial court erred in failing to first consider the appellant's affidavit of indigency and appoint an attorney ad litem to represent her before proceeding with the termination trial. That portion of the judgment terminating the appellant's parental rights, including the findings of fact and conclusions of law, is reversed and remanded. Houston's 1st Court of Appeals, No. 01-14-00201-CV, 09-04-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

THE HONORABLE GEORGE E. RISNER, Appellant v. HARRIS COUNTY REPUBLICAN PARTY, PAUL SIMPSON, CHAIR, AND LEONILA SALAZAR, Appellees

The trial court denied the appellant's petition for a permanent injunction to enjoin the appellee, the Harris County Republican Party, and its then-chair, from certifying a candidate's name for a place on a primary election ballot. The determination of a challenge to a candidate's application may be made after the primary election, so long as the determination does not interfere with the election schedule and the challenge was initiated prior to the statutory deadline for bringing such a challenge. Texas Election Code §172.021(e) is not an unconstitutional violation of the candidate's right to equal protection under the Texas Constitution. A challenge to a candidate's application may result in a review of the truthfulness of the application's contents. The election code prohibits the trial court from granting a candidate an opportunity to file an amended application and from requiring a party chair to accept an amended application after the filing deadline. The trial court's judgment is reversed and rendered enjoining certification. Houston's 1st Court of Appeals, No. 01-14-00498-CV, 09-03-2014

Practice Areas: Election and Political Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff Appellee v. JAVIER GUERRERO, also known as Javi, Defendant Appellant;

The appellant in this consolidated appeal raises numerous issues, including a Fourth Amendment objection to cell tower records obtained during the investigation. Suppression is not a remedy for a violation of the Stored Communications Act. A cell phone owner does not have a reasonable expectation of privacy in historical cell site information held by a "third party" service provider; that holding has not been overruled by Riley. The district court's decisions are affirmed. 5th U.S. Circuit, No. 13-50376 Cons. w/ No. 13-50379, 09-11-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

CHEMTECH ROYALTY ASSOCIATES, L.P., As Tax Matters Partner Real Party in Interest Dow Europe, S.A., Plaintiff-Appellant Cross-Appellee, v. UNITED STATES OF AMERICA, Defendant-Appellee Cross-Appellant.

The appellant, a corporation that worked with foreign banks purporting to operate two partnerships that generated over one billion dollars in tax deductions, challenges a sham-partnership holding. The transactions were structured to ensure that the appellant paid the foreign banks a fixed annual return on their investment regardless of the success of the venture. The appellant agreed to bear all of the non-insignificant risks. The foreign banks did not meaning-fully share in any potential upside. The sham-partnership holding is affirmed. The district court erred in foreclosing the applicability of both the substantial-valuation and gross-valuation misstatement penalties. The district court's judgment is affirmed in part, and vacated and remanded in part. 5th U.S. Circuit Court of Appeals, No. 13-30887, 09-10-2014

Practice Areas: Taxation

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

GAIA ENVIRONMENTAL, INC. AND AXL INDUSTRIES, L.L.C., Appellants v. JAMES B. GALBRAITH AND MCLEOD, ALEXANDER, POWEL & APFFEL, P.C., Appellees

The trial court granted summary judgment for an attorney and firm defending against claims alleging they tortiously interfered with contracts between the plaintiff and another company by allegedly threatening to have the contracts cancelled if a corporate deponent did not change his testimony in a suit. The conduct alleged falls within the realm of zealous and aggressive representation. The conduct alleged does not amount to pleading the requisite criminal element that the deponent "testify falsely." The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00571-CV, 09-09-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

IN THE ESTATE OF ROSA ELVIA GUERRERO, DECEASED

The appellant asserts the trial court erred in denying a motion to compel arbitration. An agreement to arbitrate can be authenticated by testimony at an evidentiary hearing. Although the trial court ultimately conducted three hearings related to the motions to compel arbitration, none of the hearings was evidentiary. The order denying the motion to compel is affirmed. Houston's 14th Court of Appeals, No. 14-13-00580-CV, 09-04-2014

Practice Areas: Alternative Dispute Resolution , Arbitration (ADR)

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

JULIO GARCIA JIMENEZ, Appellant v. THE STATE OF TEXAS, Appellee

After finding the appellant violated the terms of his deferred-adjudication community supervision by illegally re-entering the United States, the trial court adjudicated him guilty of aggravated sexual assault of a child and assessed his punishment at eight years' imprisonment. Because imprisonment was the only punishment option, the trial judge did not err in failing to order a Texas Code of Criminal Procedure Article 42.12 §9 presentence investigation. Although counsel requested a presentence investigation, counsel never specifically requested a §9A presentence investigation, nor did he mention the separate presentence investigation requirement for sex offenders; error was not preserved. The judgment is affirmed as modified to delete the assessment of fees. Houston's 1st Court of Appeals, No. 01-13-00955-CR, 09-04-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

MICHAEL HILL, Appellant v. THE STATE OF TEXAS, Appellee

The appellant urges that that the trial court erred in failing to include a proper accomplice-witness instruction in the jury charge on his aggravated sexual assault charge; and in including an accomplice-witness instruction in the jury charge relating to his aggravated robbery charge. Because the jury heard no accomplice-witness testimony in connection with the aggravated sexual assault charge, and no evidence showed that the alleged robbery accomplice was complicit in the sexual assault offense, an accomplice-witness instruction would not have been proper. Although the trial court admitted testimony from a victim and the alleged robbery accomplice as extraneous-offense evidence under Texas Rule of Evidence 404(b), this evidence does not compel a different result. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-13-00432-CR, No. 01-13-00433-CR, 09-04-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, NINTH DISTRICT, BEAUMONT

IN RE COMMITMENT OF KEVIN WAYNE EDWARDS

The appellant challenges his civil commitment as an alleged sexually violent predator. The SVP statute provides that the issue for the jury to determine was whether the appellant is a repeat sexually violent offender and suffers from a behavioral abnormality that makes him likely to commit a predatory act of sexual violence. The issue of whether the appellant would receive treatment for his schizoaffective disorder if placed under a "regular" mental health commitment was not relevant to the issue before the jury, and the trial court did not abuse its discretion by refusing to admit such evidence. The trial court's judgment is affirmed. Beaumont Court of Appeals, No. 09-13-00575-CV, 09-04-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

IN THE INTEREST OF R.S.D., a Child

This is an appeal from the termination of the appellant's parental rights. The state did not meet its burden to establish by clear and convincing evidence that termination of appellant's parental rights is in the child's best interest. Other than the fact that appellant was incarcerated at the time of trial, with a projected release date in 2016 and the possibility of parole sooner, no other evidence was offered on whether appellant's relationship with her child was not a proper one. The portion of the judgment relating to the termination of appellant's parental rights is reversed and judgment is rendered denying the state's petition for termination. San Antonio Court of Appeals, No. 04-13-00665-CV, 09-03-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

STEVEN FRANKOFF, Appellant v. SUSAN C. NORMAN, Appellee

The appellant challenges a take-nothing judgment in this suit involving the disbursement of attorneys' fees from a settlement. The trial court granted the attorney's combined traditional and no-evidence summary judgment motion. Blanket citation to voluminous records is not a proper response to a no-evidence motion for summary judgment. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00162-CV, 09-09-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

JOHN RUSSELL COFFMAN, Appellant v. CELESTE ELANE COFFMAN MELTON, Appellee

The appellant appeals from the issuance of a protective order. An application for a new protective order under Texas Family Code §82.0085 seeks new and different relief not sought in the original order (i.e., an additional period of protection) and which could not have been sought in the prior proceeding; thus, the application was not barred by res judicata. The trial court's order is affirmed. Houston's 14th Court of Appeals, No. 14-13-00661-CV, 09-04-2014

Practice Areas: Family Law

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

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. RAQUEL IBARRA, Appellee.

The Texas Department of Public Safety appeals the trial court's order granting the expunction of the records relating to the appellee's arrest. The requirement that the prosecutor's recommendation be made to the appropriate district court does not imply that Texas Code of Criminal Procedure article 55.01(b)(2) only applies to offenses that are untried. The trial court may expunge records under subsection (b)(2) regardless of whether a plea of nolo contendere is entered or community supervision is imposed. Consistent with Pinnock, because the record reflects that no evidence was presented at the expunction hearing and that the trial court's decision was not based on evidence provided at the hearing, a remand is not required for lack of a reporter's record. The trial court's order is affirmed. Corpus Christi Court of Appeals, No. 13-13-00656-CV, 09-02-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

Cadena Comercial USA Corp. d/b/a OXXO, Appellant v. Texas Alcoholic Beverage Commission, Appellee

The appellant challenges an administrative order denying its original application for a wine and beer retailer's off-premise permit. The principal objective of Texas Alcoholic Beverages Code chapter 102 is to ensure strict separation of the three tiers, including any overlapping ownership interests and related practices as well as other specifically prohibited relationships that give rise to the potential for influence and inducement. The term "interest" is unambiguous considered in this context and in relation to other uses of the term in the Code. A disqualifying interest -- ownership or otherwise -- is not limited to situations of actual control. The trial court's judgment is affirmed. Austin Court of Appeals, No. 03-13-00262-CV, 09-05-2014

Practice Areas: Administrative Law

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

HELEN BUTTS TIPPS, SUE ETHEL MCEACHERN, ESTATE OF FLORA L. THOMPSON, PERRY THOMPSON, JR., INDEPENDENT EXECUTOR, PERRY THOMPSON, JR., AND SANDRA SUE SARTAIN, Appellants v. CHINN EXPLORATION COMPANY AND CHEROKEE ROYALTY SYNDICATE, HOWARD P. COGHLAN, RECEIVER, Appellees

Multiple parties contested mineral rights in neighboring tracts.That property was divided in the 1890's by partition into the husband's name does not contradict the presumptively community nature of the property. Claims that a 1919 "transfer of royalties" was unambiguous and improperly construed to convey the fee interest are foreclosed by res judicata; a 1951 proceeding adjudicating the mineral interests was the proper time to litigate the ownership of the interests. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00033-CV, 09-05-2014

Practice Areas: Residential and Commercial Real Estate

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

ANTHONY G. HEREFORD, JR., APPELLANT v. THE STATE OF TEXAS, APPELLEE

The appellant contends that the trial court erred in allowing a police officer to repeat an accusation uttered against him in a 911 call by an un-named person. The statements at issue were testimonial and used for the truth of the matter asserted. Because the state failed to show that the caller was unavailable to testify at trial and that appellant had a prior opportunity to cross-examine him or her, their admission over appellant's Sixth Amendment objection violated that amendment. The error was harmful: the constitutional violation cannot be condoned through the simple invocation of the harmless error rule and its primary focus on the quantum of admissible evidence otherwise supporting the finding of guilt. The trial court's judgment is reversed and remanded. Amarillo Court of Appeals, No. 07-13-00180-CR, 09-08-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee v. FRANCISCO TORRES, Defendant - Appellant

The appellant was convicted on charges relating to the federal Sex Offender Registration and Notification Act. Following Johnson, with respect to the requirement that regulations be published at least 30 days before their effective date, Johnson found the Attorney General's violation of that provision to be harmless because the conduct of the defendant in that case occurred more than 30 days after the interim rule's Feb. 28, 2007, publication. With respect to the requirement that interested persons be provided advanced notice of proposed rulemaking and afforded the opportunity to comment, Johnson found the violation of such to be harmless. The conviction is affirmed. 5th U.S. Circuit Court of Appeals, No. 09-50204, 09-08-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

WILLIE TYRON TROTTIE, PlaintiffAppellant, v. BRAD LIVINGSTON, ET AL., DefendantsAppellees.

This appeal concerns the district court's denial of a temporary or preliminary injunction to stay execution. An uncertainty as to the method of execution is not a cognizable liberty interest. The stay of execution is denied. 5th U.S. Circuit Court of Appeals, No. 14-70028, 09-09-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, PlaintiffAppellee v. JEFFREY TODD HOWARD, DefendantAppellant

The appellant was convicted by bench trial on the charge of alleged attempt to knowingly persuade, induce, entice, or coerce a minor to engage in illegal sexual activity. "Grooming behavior" plus other acts strongly corroborative of alleged intent to entice illegal sex -- such as detailed discussions to arrange a meeting with the minor victim -- can suffice to establish a substantial step under 18 U.S.C. §2422(b). Section 2422(b) is not unconstitutionally overbroad because it does not criminalize protected speech in this case. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-40767, 09-08-2014

Practice Areas: Criminal Law

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

IN RE GREATER MCALLEN STAR PROPERTIES, INC., MARILYN HARDISON, AND JASEN HARDISON

The relators seek to set aside an order compelling discovery and to compel the trial court to set a hearing on their motion for summary judgment. Where the motion for summary judgment was premised, in part, on legal issues involving mixed questions of law and fact, the trial court had discretion to conclude that additional discovery was necessary. Texas Rule of Civil Procedure 47 does not require that a party must re-issue discovery requests after the amendment of its pleadings. A previously imposed stay is lifted, and the writ of mandamus is denied. Corpus Christi Court of Appeals, No. 13-14-00423-CV, 09-04-2014

Practice Areas: Appellate Law - Civil

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee v. FRANCISCO VASQUEZ, also known as Francisco Vazquez; JUAN ECHEVERRIA, Defendants-Appellants

Two co-defendants appeal their convictions and sentences for alleged conspiracy to possess methamphetamine with intent to distribute. Agreement to participate in a conspiracy may be inferred from a concert of action. Bruton does not apply to a non-testimonial jailhouse confession. The convictions and sentences are affirmed. 5th U.S. Circuit Court of Appeals, No. 12-41194, 09-03-2014

Practice Areas: Appellate Law - Criminal

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

ALLEN THOMPSON, Plaintiff Appellant, v. CITY OF WACO, TEXAS, Defendant Appellee.

In this alleged racial discrimination suit against a city, the district court dismissed the plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6), holding that the plaintiff failed to allege an adverse employment action. A change in or loss of job responsibilities-similar to the transfer and reassignment contexts-may be so significant and material that it rises to the level of an adverse employment action. Because the plaintiff states a plausible claim that he was subject to the equivalent of a demotion, the district court's judgment is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 13-50718, 09-03-2014

Practice Areas: Labor and Employment

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

EXELON WIND 1, L.L.C., formerly known as JD Wind 1, L.L.C.; EXELON WIND 2, L.L.C., formerly known as JD Wind 2, L.L.C.; EXELON WIND 3, L.L.C., formerly known as JD Wind 3, L.L.C.; EXELON WIND 4, L.L.C., formerly known as JD Wind 4, L.L.C.; [...] v. DONNA L. NELSON, in her official capacity as Chairman of the Public Utility Commission of Texas; KENNETH W. ANDERSON, JR., in his official capacity as Commissioner of the Public Utility Commission of Texas; ROLANDO PABLOS, in his official c [...]

This appeal concerns the Texas Public Utilities Commission's interpretation and implementation of a federal statutory and regulatory scheme governing the purchase of energy between public utilities and certain energy production facilities known as Qualifying Facilities. Appellees are qualifying wind generation facilities collectively known as Exelon that challenged a state rule and order which prohibited Exelon from forming Legally Enforceable Obligations when selling power. Exelon's challenges to the PUC Order are as-applied challenges, over which the district court lacked jurisdiction. The PUC, rather than FERC, had the discretion to determine the specific parameters for when a wind farm can form a Legally Enforceable Obligation, and through regulation determined that only when a wind farm can provide firm power may it enter into a Legally Enforceable Obligation. The district court's judgment is vacated in part and reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 12-51228, 09-08-2014

Practice Areas: Energy and Natural Resources

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

In the Matter of: TMT PROCUREMENT CORPORATION; A WHALE CORPORATION; B WHALE CORPORATION; C WHALE CORPORATION; D WHALE CORPORATION; E WHALE CORPORATION; G WHALE CORPORATION; H WHALE CORPORATION; A DUCKLING CORPORATION; F ELEPHANT INCORPORATED; A LADYBUG CORPORATION; C LADYBUG CORPORATION; D LADYBUG CORPORATION; A HANDY CORPORATION; B HANDY CORPORATION; C HANDY CORPORATION; B MAX CORPORATION; NEW FLAGSHIP INVESTMENT COMPANY LIMITED; RORO LINE CORPORATION; UGLY DUCKLING HOLDING CORPORATION; GREAT E [...]

The appellant challenges orders issued by the district court and bankruptcy court. A failure to obtain a stay of an authorization under 11 U.S.C. §363(m) and §364(e) moots an appeal of that authorization where the purchaser or lender acted in good faith. Section 541(a)(7) is limited to property interests that are themselves traceable to "property of the estate" or generated in the normal course of the debtor's business. The orders are vacated and the case is remanded. 5th U.S. Circuit Court of Appeals, No. 13-20622, Consolidated with No. 13-20715, 09-03-2014

Practice Areas: Bankruptcy

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

ATLANTIC INDUSTRIAL INC., A/K/A ATLANTIC SCAFFOLDING COMPANY AND FAUSTINO MURILLO, Appellants, v. EUGENE BLAIR, III, Appellee.

Defendants, a driver and his employer, appeal a judgment entered against them arising from an automobile accident. The presumption of agency under the branded-vehicle doctrine -- that the driver was the company's employee and was within the course and scope of his employment -- stems directly from the company's presumed ownership of the vehicle. The driver's testimony that he owned the truck rebutted that inference. The fact that the employer paid a vehicle allowance to the driver did nothing to vest it with control over the truck. The trial court's judgment is reversed and rendered that the plaintiff take nothing against the employer, and is otherwise affirmed. El Paso Court of Appeals, No. 08-12-00093-CV, 08-28-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

IN RE: H.R.L., Relator.

The relator challenges several of the trial court's orders in this suit affecting the parent-child relationship, including an interim temporary order awarding the child's great-aunt, possession of and access to the child when no showing has been made that the great aunt has standing. The trial court did not have authority to grant relief in favor of the great-aunt, even on a temporary basis, without first determining that she has standing under Texas Family Code §102.004(b) and granting her leave to intervene. The writ of mandamus is conditionally granted. El Paso Court of Appeals, No. 08-14-00053-CV, 08-29-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

THE PRUDENTIAL INSURANCE COMPANY OF AMERICA and PRUCO LIFE INSURANCE COMPANY, Appellants/Cross-Appellees, v. IRASEMA SAGARNAGA DURANTE, Appellee/Cross-Appellant.

This case arises out of an insurer's non-payment of life insurance proceeds based on a rejected change of beneficiary form by the insured. The policy terms define the right of the owner to change beneficiaries. The insurer's argument that it could reject a beneficiary change that it found to be ambiguous is without merit; the insurer acknowledged that the primary beneficiary designation was clear, and a death rendered moot any ambiguities in the contingent beneficiaries percentages. Statutory interest, pursuant to Texas Insurance Code §542.060(a), begins the day after the deadline ends under §542.058(a) or (c), that being either day 61 or day 91. The interest penalty accrues until the day before the policy proceeds have been deposited into the court's registry. The trial court's judgment is reformed and reversed in part as it relates to attorney's fees, and otherwise affirmed. El Paso Court of Appeals, No. 08-12-00077-CV, 08-29-2014

Practice Areas: Insurance Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

TILL S. DERR; KAI DERR; KATJA DERR; MARGRET DERR, PlaintiffsAppellants, v. THOMAS L. SWAREK; THOMAS ANTHONY SWAREK, DefendantsAppellees.

The district court refused to grant comity to the judgment of a German court, finding that the purpose of the German litigation was to interfere with the Mississippi proceedings and the resulting judgment should not be enforced. Because the court has no role to play in a Mississippi Rule of Civil Procedure 41(a)(1) dismissal, it is of no consequence that the court lacks jurisdiction over the defendant. If the plaintiff chooses to extinguish his rights forever he is entitled to do so, and the defendant will reap the benefit of a res judicata bar to any attempt by the plaintiff to re-litigate the dismissed claims. Strict identity of parties is not necessary for either res judicata or collateral estoppel to apply, if privity is shown. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-60904, 09-09-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

LUIS A. AND LINDA A. SANTIAGO, Appellants v. NOVASTAR MORTGAGE, INC., THE BANK OF NEW YORK MELLON, AS TRUSTEE, OCWEN LOAN SERVICING, LLC, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., OCWEN FINANCIAL CORPORATION, AND THE BANK OF NEW YORK MELLON CORPORATION, Appellees

The appellants, homeowners, appeal a summary judgment in this dispute involving a home equity loan. The nature of the injury alleged by the appellants is that they did not receive a copy of the affidavit required by subsection (v) of Article XVI, section 50(a)(6)(Q) of the Texas Constitution. They allege that a copy of the affidavit was not provided to them, and instead was filed of record bearing forgeries of their signatures. Neither the discovery rule nor Texas Civil Practice and Remedies Code §16.069 applies to the Santiagos' claims. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-13-00619-CV, 08-28-2014

Practice Areas: Banking and Financial Institutions

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

MATHESON TRI-GAS, INC., Appellant v. MAXIM INTEGRATED PRODUCTS, INC., Appellee

The appellant challenges the trial court's summary judgment on the appellee's counterclaim for a declaration that the parties' contract never commenced. Because the parties left the commencement date open for future negotiations, there was no binding contract. Statements that the appellant argues are actionable may reflect an implied presumption that the parties would later agree upon a commencement date as contemplated by the agreement. The appellant had equal access to the terms of the agreement and was free to accept or reject this implied presumption. The trial court's summary judgment is affirmed. Dallas Court of Appeals, No. 05-13-00929-CV, 08-27-2014

Practice Areas: Contracts

COURT OF APPEALS OF TEXAS, ELEVENTH DISTRICT, EASTLAND

PLANTATION PIPE LINE COMPANY, Appellant v. HIGHLANDS INSURANCE COMPANY, IN RECEIVERSHIP, Appellee

The trial court agreed with the appellee, an insurer, that the appellee was not liable because the other insurers settled their claims with the appellant for less than their various full policy limits and because they had neither paid, nor had they been held liable to pay, the full limits on their individual policies. Under either Texas or Georgia law, the trial court erred when it held that the settlement with the other insurers for less than their policy limits failed to trigger the policy. The language in the policy is unambiguous. Nothing requires payment of losses solely by the insurers up to the attachment amount -- $8 million -- in the policy. The trial court's judgment is reversed and remanded. Eastland Court of Appeals, No. 11-12-00029-CV, 08-29-2014

Practice Areas: Insurance Law

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

STEPHANIE M. DEL TORO, Appellant, v. PAY AND SAVE, INC., DBA LOWE'S BIG 8 AND JESSE CRAWFORD, Appellees.

The appellant, the plaintiff in this alleged slip-and-fall suit, challenges the grant of a no-evidence summary judgment. When circumstantial evidence is relied upon to prove constructive notice, the evidence must establish that it is more likely than not that the dangerous condition existed long enough to give the proprietor a reasonable opportunity to discover the condition, and circumstantial evidence which supports only the possibility that the dangerous condition existed long enough to give a premises owner or occupier a reasonable opportunity to discover it, is not sufficient to establish constructive notice. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-12-00193-CV, 08-27-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

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

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

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

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

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

Practice Areas: Insurance Law

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

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

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

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

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

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

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

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

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

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

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

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

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

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

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

Practice Areas: Appellate Law - Criminal

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

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

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

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

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

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

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Ex parte K.R.K.

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

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

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

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

Practice Areas: Consumer Protection

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

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

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

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

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

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

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

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

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

Practice Areas: Residential and Commercial Real Estate

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

IN THE MATTER OF S.P.

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

Practice Areas: Health Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

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

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

Practice Areas: Criminal Law