Recent Decisions

Court of Appeals of Texas, First District

In Re Bloom, 01-16-00832-CV (TexApp Dist 05/09/2017)

Glencove Holdings ended a contract with appellant Bloom Business Jets for crew and maintenance services. Appellant put a lien on its plane, and Glencove sued for a declaratory judgment on the amount and validity of the lien, along with other causes of action. Appellant moved to dismiss for lack for personal jurisdiction, because the contract required litigation to be brought in Colorado, and also filed a special appearance. Although Glencove paid the lien before the trial court heard the motion, the court held that it had jurisdiction over the lien question (though not the other claims) and ordered a temporary injunction on appellant. Appellant petitioned for a writ of mandamus, and the next day the court entered a written order denying appellant's special appearance and motion to dismiss without stating a reason. An appeal followed. The court found that forum-selection clause, requiring "litigation involving this Agreement" to be brought in Colorado, was valid and applied to the lien. The court rejected Glencove's argument that appellant's lien did not fall within the scope of the contract because it was filed after Glencove terminated the contract. The court found that the phrase "litigation involving this Agreement" included the lien, whereas narrower language such as "arising under" an agreement might not, because appellant filed the lien in an attempt to collect under the contract. The court also rejected Glencove's argument that it was forced to file an action in Texas to avoid foreclosure on its plane by its lender; the court recognized that the lender requested Glencove to pay or contest the lien but noted that Glencove did not explain why it could not take that action in Colorado. Lastly, the court found that all other claims were also "involving" the contract, and held that appellant's motion to dismiss therefore must granted in its entirety. The court conditionally granted the writ of mandamus, directed the trial court to vacate its orders and dismiss the suit, and dismissed as moot the appeal on the special appearance question. In Re Bloom, Houston 1st Court of Appeals, Case No. 01-16-00832-CV, 5/9/17.

01-16-00832-CV
HARVEY BROWN, JUSTICE

Court of Appeals of Texas, First District

Jinkins v. Jinkins, 01-16-00194-CV (TexApp Dist 05/11/2017)

Appellant Randy Jinkins sued his siblings to clarify whether mineral rights inherited from his father belonged to him and his full brother Wiley, or were split in equal shares with their two half-siblings. The dispute came to light several years after father's death when appellant assigned what he believed to be his leases to a company that notified him in 2013 that his half-siblings might have an ownership interest. Father had remarried after Randy and Wiley's mother died in 1952, and had two more children with his second wife. In chronological order, grandparents created a trust in 1947 upon grandfather's death, mother died in 1952 with a probated joint will that transferred property into a trust, grandmother died in 1963, father created a will in 1993, and father died in 2000. father's 1993 will split the corpus of his estate among his four children. The dispute focused on whether certain oil and gas leases were included in the 1952 trust or split among the four children as per the 1993 will. After the 2013 disclosure, appellant brought a trespass-to-try-title action, and the trial court granted summary judgment for the siblings. An appeal followed. The court found that the father's interests in the grandparents' estate was transferable even before grandmother died because it was a vested remainder. The court also found that by the terms of the joint will, those vested remainders passed into the trust that was created upon her death. The court then found that although father's 1993 will purported to revoke the joint will, by its terms it could only be revoked by both parents – and furthermore, it did not attempt to revoke the trust that was created in 1952. The court found that the trial court properly dismissed appellant's original suit for a declaratory judgment (which preceded the trespass-to-try-title action), a finding that affected one property, with ownership of that property split four ways. The court affirmed the trial court's judgment as to that property, and reversed and rendered judgment that the other properties are owned one-half by appellant and one-half by Wiley Jinkins. Jinkins v. Jinkins, Houston 1st Court of Appeals, Case No. 01-16-00194-CV, 5/11/17.

01-16-00194-CV
REBECA HUDDLE, JUSTICE

Court of Appeals of Texas, First District

Amigos v. Guzman, 01-16-00149-CV (TexApp Dist 05/11/2017)

Julian Guzman injured his back while lifting a frozen cow carcass as part of his job as a truck driver for appellant Amigos Meat Distributors. The injury led to years of constant pain, depression, a suicide watch, and eventual surgery. Appellant paid his medical bills for the first few months but stopped after a private investigator captured video of Guzman carrying a laundry basket. Guzman sued appellant for negligence, the jury awarded him $288,000, and an appeal followed. In its first issue, appellant argued Guzman could not establish causation between his 2014 surgery and the 2011 work injury, based on a deposition by Guzman's surgeon that the injury was pre-existing as of 2014. Noting that the deposition had not been entered into evidence, the court also found that the surgeon based his medical opinion largely on Guzman's medical history since the injury. It found that a plaintiff can establish causation by a specific incident despite "asymptiomatic" conditions beforehand, under Hospadales v. McCoy (2017 WL 1117327) and Katy Springs & Manufacturing, Inc. v. Favalora (476 S.W.3d 579). In its second issue, appellant argued the jury improperly awarded Guzman more than $200,000 for a bill to HMRF, a financing firm that provides money for medical bills. Appellant argued the award for the HMRF bill violated Tex. Civ. Prac. & Rem. Code §41.0105, which limits recovery of medical bills "to the amount actually paid or incurred by or on behalf of the claimant." The court found that under Katy Springs, §41.0105 includes money the plaintiff owes to a financing company. In its third issue, appellant charged that several remarks Guzman's attorney made during trial were intended to inflame the jury, but the court found it did not raise to the level of incurable, improper argument. Having overruled all of appellant's issues, the court affirmed the trial court's judgment. Amigos Meat Distributors v. Julian Guzman, Houston 14th Court of Appeals, Case No. 01-16-00149-CV, 5/11/17.

01-16-00149-CV
SHERRY RADACK, CHIEF JUSTICE

United States Court of Appeals, Fifth Circuit

In re Eric, 16-20312 (5th Cir. 05/11/2017)

Appellant was convicted of capital murder and sentenced to death in Texas state court. On direct appeal, the Texas Court of Criminal Appeals affirmed appellant's conviction and sentence and the Texas Supreme Court denied his petition for a writ of certiorari. On the eve of his scheduled execution, appellant filed a second state habeas petition raising an Atkins claim; the CCA, despite recommendation, denied appellant's second state habeas petition. Thereafter, appellant filed in this court a motion for authorization to file a successive habeas petition raising an Atkins claim. Appellee moved to dismiss the petition urging that it was successive. The district court agreed and transferred appellant's petition to this court. Appellant now appeals the district court's transfer order and, alternative, moved for authorization to file a successive habeas petition. The court affirmed the transfer order finding there was no intervening judgment given the CCA decision did not modify his sentence. However, the court found appellant made the requisite prima facie showing and granted his motion for authorization to file a successive petition. Appellant sufficiently showed that (1) his Atkins claim was not previously presented, (2) his Atkins claim relied on a new rule of constitutional law, and (3) his Atkins claim had merit. Accordingly, the court granted his motion for authorization. In re: Eric Dewayne Cathey, Fifth Circuit, Case No.: 16-20312, 05/11/2017

16-20312

Supreme Court of Texas

Ad Villarai v. Chan Il, 16-0373 (TexApp Dist 05/12/2017)

Villarai sued Pak for breach of fiduciary duty and related claims. In March 2014, the then-assigned judge (Judge Lowy) lost an election to Judge Williams. In November 2014, Judge Lowy conducted a bench trial on Villarai's claims, and entered a final judgment on November 24, 2014. Pak timely filed a request for findings of fact and conclusions of law on December 1, but Judge Lowy did not file findings within 20 days. Pak then filed a notice of past due findings on December 31, Judge Lowy's last day as the elected judge. Judge Williams took office on January 1, 2015. After learning of Pak's pending request, Judge Williams ordered copies of the reporter's record and exhibits from the bench trial and then timely filed her findings of fact and conclusions of law. Pak appealed, arguing that Judge Williams' findings were invalid because she lacked the authority to file them. The court of appeals agreed, and further held that Judge Lowy could not then file findings because he had been replaced. On appeal, the court first agreed that no provision of Texas law or procedure grants successor judges the authority to file findings on behalf of their predecessors displaced by an election, rendering Judge Williams' findings invalid. The court held, however, that, contrary to the decision reached by the court of appeals, because Judge Lowy's term expired during the period prescribed for filing the findings, the statute authorized him to file the findings - even after his term expired. It remanded the case with a request that Judge Lowy file findings in the case. It explained that, if he failed or refused to do so, then the case was remanded for a new trial. Ad Villarai, LLC v. Pak, Supreme Court, No. 16-0373, 5/12/17

16-0373

Court of Appeals of Texas, Third District

Freeman v. State of Texas, 03-16-00130-CR (TexApp Dist 05/09/2017)

Appellant Matthew Freeman was indicted for assault on a family member by impeding the normal breathing or circulation of blood. In a bench trial, he plead not guilty to that charge but guilty to a lesser charge and guilty to an enhancement. However, the court found him guilty of the top charge, stating in its ruling that it found "by the clearer greater weight and degree of credible testimony that the Defendant is guilty of the offense." The court sentenced appellant to 15 years, and he appealed, arguing the trial court did not find him guilty beyond a reasonable doubt. The appeals court found that the trial court used a different standard than reasonable doubt by its express statement in its ruling. The court found that doing so violated appellant's due process rights under the 14th Amendment. The court also found that a failure to impose a reasonable doubt standard is a "structural error" that is not subject to a harm analysis, rejecting the state's request for one. By analogy, the court found that the U.S. Supreme Court held in Sullivan v. Louisiana (508 U.S. 275) that an improper jury instruction on reasonable doubt is a structural error. The court held that it was required to reverse because the trial court denied appellant his constitutional right to conviction based on proof beyond a reasonable doubt. The court reversed the trial court's judgment and remanded for further proceedings. Matthew Freeman v. The State of Texas, Austin Court of Appeals, Case No. 03-16-00130-CR, 5/9/17.

03-16-00130-CR
SCOTT K. FIELD, JUSTICE

Court of Appeals of Texas, Eighth District

Perez v. State of Texas, 08-15-00253-CR (TexApp Dist 05/11/2017)

Laura Robles obtained a protective order against her ex-boyfriend, appellant Sergio Perez, in 2012. Roughly a month later, at Robles' daughter's 13th birthday party, appellant encountered her, called her vulgar names, and claimed he was going to kill her. Appellant was convicted of violating a protective order and fined $2,500. He appealed on three issues that were all predicated on the argument that the order was void, and a fourth issue on First Amendment grounds. On the first three, appellant argued the order was void because the court issued it without a finding of past family violence or likelihood of future violence. The court rejected his argument that such a finding is required under Tex. Fam. Code §85.001. The court also found, however, that even if the order had been improperly issued, it would be voidable rather than void, and therefore cannot be attacked for the first time on appeal. The court stressed the importance of respecting the underlying judgment and overruled appellant's first three issues. On the First Amendment challenge, the court found that appellant's language was not protected speech because it was coupled with a threat. Furthermore, the court found, the vulgarities alone are unprotected in the context of a family birthday party as they are highly likely to incite violence. The court found that arresting appellant in that scenario amounted to a content-neutral time, place or manner restriction on speech, and survives a Constitutional challenge. Having overruled all of appellant's issues, the court affirmed the trial court's judgment. Sergio Perez v. The State of Texas, El Paso Court of Appeals, Case No. 08-15-000253-CR, 5/11/17.

08-15-00253-CR
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

Supreme Court of Texas

University v. Redus, et al, 15-0732 (TexApp Dist 05/12/2017)

Redus' parents sued UIW after a campus police officer employed deadly force following a traffic stop. UIW argued it was entitled to governmental immunity, and asked the trial court to dismiss the suit. The trial court denied the plea, and UIW took an interlocutory appeal. The court of appeals rejected UIW's claim that it was a governmental unit when defending the actions of a state-authorized police department and, as a result, dismissed the appeal. UIW appealed, arguing that the court of appeals had jurisdiction to consider the interlocutory appeal. The court agreed with UIW that, because its status and authority to create a law enforcement agency or police department arose from laws passed by the legislature that allow private universities to commission and deploy peace officers to enforce criminal laws, it was a governmental unit for purposes of defending its campus police department. The court relied upon the fact that UIW was required to follow the same state-promulgated rules its public counterparts follow in establishing its campus police department, including submitting to audits, requiring only certain credentialed individuals to be employed as officers; applying for state approvals; being subjected to the Public Information Act; and receiving limited immunity when its officers act pursuant to mutual assistance agreements with local police departments. It remanded the case to the court of appeals with instructions that it had jurisdiction to consider UIW's appeal. University of the Incarnate Word v. Redus, et al., Supreme Court, No. 15-0732, 5/12/17

15-0732
EVA M. GUZMAN, JUSTICE

Supreme Court of Texas

First Bank v. Brumitt, 15-0844 (TexApp Dist 05/12/2017)

Brumitt agreed to sell his company to DTSG, which was owned by Don Oprea. Oprea approached First Bank for a loan. The loan process took far longer than anticipated and, as a result, the sale never occurred. After DTSG and Oprea sued First Bank, Brumitt intervened as another plaintiff, alleging that he was a third-party beneficiary of three loan commitment letters between DTSG and First Bank. The jury found for DTFG and Brumitt and awarded Brumitt over $1.8 million in damages. The court of appeals affirmed on the breach of contract claim, agreeing that Brumitt was a third-party beneficiary. It reversed, however, on the misrepresentation claims, concluding that Brumitt failed to establish any extra-contractual damages. On appeal, the court first agreed that Brumitt was not a third-party beneficiary because nothing in the loan commitment letters expressed any intent to make Brumitt a third-party beneficiary, and it was not enough that he would benefit from the transaction. The court further held that the question of whether Brumitt was a third-party beneficiary was one for the trial court to decide where, as here, the documents were unambiguous, and that it erred by submitting the question to the jury. The court added that the trial court erred by also allowing the jury to consider extrinsic evidence about the otherwise unambiguous loan commitment letters. The court held that, in light of its opinion vacating the breach of contract award, the court of appeals should reconsider its decision on the misrepresentation counts. First Bank v. Brumitt, Supreme Court, No. 15-0844, 5/12/17

15-0844
JEFFREY S. BOYD, JUSTICE

United States Court of Appeals, Fourth Circuit

Roberts v. Roberts, 04-16-00170-CV (4th COA. 05/10/2017)

The parties filed for divorce with the case going to trial before a jury on a single issue of geographical restriction of appellee-wife's residence sought by appellant-husband. The trial court heard the remaining non-jury issues, which included possession of and access to the children, characterization and division of property, and spousal maintenance. In the first trial, the trial court ordered a disproportionate division of the marital estate and ordered appellant to pay spousal maintenance. In the first appeal, the court affirmed in part and remanded in part a mischaracterized portion of separate property. Upon remand, the trial court modified the separate property amount but maintained the spousal support order. In the instant second appeal, appellant asserted the trial court abused its discretion by awarding appellee spousal maintenance arguing she failed to demonstrate she was eligible for spousal maintenance as she did not demonstrate she lacked sufficient property to provide her minimum reasonable needs. The court reversed the spousal support order finding appellee failed to provide the quantum of substantive and probative evidence to support the trial court's determination that she was disabled to an incapacitating degree given appellee's testimony was the sole support for her disability claim. As a result of such reversal, the court further reversed the division of estate as the parties' relative physical condition is a factor in determining such distribution. Roberts v. Roberts, San Antonio Court of Appeals, Case No.: 04-16-00170-CV, 05/10/2017

04-16-00170-CV
IRENE RIOS, JUSTICE

Court of Appeals of Texas, Eighth District

Morgan v. Whitfield, 08-16-00080-CV (TexApp Dist 05/11/2017)

Appellant Larry Joe Morgan, a prison inmate, sued his warden and two correctional officers, alleging they failed to protect him from another inmate who beat him. The Texas Attorney General's office moved to dismiss, citing procedural deficiencies in appellant's pro se action, including that he failed to file a copy of the written decision from the prison's grievance system. Appellant responded and provided a declaration that he had submitted a grievance in the prison's system but never received a response. The trial court, without a hearing, dismissed the case with prejudice, and an appeal followed. The court found that appellant's claim was deficient, but that dismissal was improper because the claim could have been cured with an amended pleading. Furthermore, the court found that the court should not have ruled on the motion to dismiss at all, because it was required under Tex. Gov't Code §14.005(c) to stay the case when shown evidence that the grievance process was not complete. The court therefore held it could not modify the judgment. The court reversed the trial court's judgment and remanded for further proceedings. Morgan v. Whitfield, El Paso Court of Appeals, Case No. 08-16-00080-CV, 5/11/17.

08-16-00080-CV
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

Supreme Court of Texas

Bankdirect v. Plasma, 15-0635 (TexApp Dist 05/12/2017)

Plasma Fab obtained an insurance policy from Scottsdale Insurance Company, which it financed through a premium finance agreement with BankDirect whereby BankDirect paid the annual premium to Scottsdale, and Plasma Fab made monthly payments to BankDirect. The agreement between BankDirect and Plasma Fab gave BankDirect authority, upon Plasma Fab's default, to cancel the insurance policy, collect the unearned premiums from Scottsdale, and apply them to the loan balance, after providing notice required by the Texas Finance Act, which required at least 10 days for the default to be cured. In November 2008, Plasma Fab was late with a payment. This was the third time it was late; on the two prior times, the policy was cancelled, but reinstated after Plasma Fab made the late payment. This third time, BankDirect again sent Plasma Fab the required cure notice, but delayed mailing it by one day, so that it only provided nine days for Plasma Fab to cure. On the tenth day, BankDirect cancelled the Scottsdale policy. Four days later, a fire destroyed a building. The next day, Plasma Fab tendered the required payment, and requested reinstatement of its policy. Scottsdale refused and, ultimately, a $6 million judgment was entered against Plasma Fab for damages arising out of the fire. It sued BankDirect, claiming that it had no right to cancel the policy because its notice to Plasma Fab did not comply with the statute's requirements. The trial court rejected this argument, but the court of appeals reversed, holding that, because BankDirect mailed its notice one day late, it lacked authority to cancel the policy. On appeal, BankDirect argued that, although the notice only allowed nine days to cure, its error should be excused under the doctrine of "substantial compliance" because, at the end, Plasma Fab did not attempt to cure until the 14th day. The court disagreed. It held that the statutory language was clear and unambiguous, requiring a 10-day cure period. Thus, the court held, because the notice did not comply with the statute, BankDirect lacked authority to cancel the policy. BankDirect Capital Finance, LLC v. Plasma Fab, LLC, et al., Supreme Court, No. 15-0635, 5/12/17

15-0635
DON R. WILLETT, JUSTICE

United States Court of Appeals, Fifth Circuit

USA v. Broca-Martinez, 16-40817 (5th Cir. 04/28/2017)

During a traffic stop, officers discovered that appellant was in the country illegally and that he was harboring undocumented immigrants at his residence. The officer initiated the stop after receiving a "be on the lookout" transmission. The officer matched the vehicle and stopped appellant after his "in-vehicle computer" designated the vehicle's insurance status as "unconfirmed" – typical of an uninsured motorist in violation of Texas's driver financial responsibility. Appellant entered a conditional guilty plea to one count of conspiracy to transport undocumented aliens in violation of 8 U.S.C. §1324. Appellant was sentenced to twelve months and one day imprisonment. On appeal, appellant contended that there was no reasonable suspicion justifying the initial stop and, therefore, the trial court erred in denying his motion to suppress. The court, similar with other circuits, affirmed concluding a state computer database indication of insurance status may establish reasonable suspicion when the officer was familiar with the database and the system itself was reliable. The court noted the officer's testimony provided sufficient support for the reliability of the database and that based on his knowledge and experience of working, he knew the vehicle was uninsured when an "unconfirmed" status appeared because the computer system would either return an "insurance confirmed" or "unconfirmed" response. Accordingly, the court affirmed denial of appellant's motion to suppress and affirmed his conviction and sentence. United States of America v. Cecilio Antonio Broca-Martinez, Fifth Circuit, Case No.: 16-40817, 04/28/2017

16-40817
EDWARD C. PRADO, CIRCUIT JUDGE

Supreme Court of Texas

Green v. Dallas, 16-0214 (TexApp Dist 05/12/2017)

Dallas County Schools hired Green as a bus driver. At the time he was hired, Green disclosed that he suffered from a heart condition. On the day in question, Green was assigned to a bus driven by Carlos Barcena. After the bus was empty, Green repeatedly asked Barcena to stop at a gas station so that he could use the bathroom. When Barcena delayed, Green urinated on himself, and then into an empty water bottle. At the next scheduled stop, Green assisted in securing a wheelchair-bound student on the bus. DCS terminated Green's employment for unprofessional conduct, including urinating on himself, into a water bottle, and exposing students to bodily fluids. Green sued, alleging that he was terminated because he was disabled. The jury agreed and found for Green. The court of appeals reversed, holding that the evidence did not show that DCS terminated Green "because of" his disability. It held that, even if Green was terminated because of urinary incontinence, there was no evidence that this was connected to his heart condition, which it viewed as Green's "disability." On appeal, the court agreed with Green that the court of appeals erred by concluding that the only disability the jury could have found was Green's heart condition. The court held that there was sufficient evidence introduced during the trial about Green's incontinence, and that, because it was undisputed that Green was terminated "because of" his incontinence, that was sufficient to support a jury finding for Green. Green v. Dallas County Schools, Supreme Court, No. 16-0214, 5/12/17

16-0214

Supreme Court of Texas

Shields v. Bradberry, 15-0803 (TexApp Dist 05/12/2017)

The record showed that the defendants were often late in tendering their commercial rent payments to Shields (landlord), but that Shields accepted the late payments, without protest. The record also showed that, in 2012, defendants advised Shields that they intended to exercise an option to extend the lease for another five years, and that Shields thereafter accepted continued rental payments. In late 2013, however, Shields advised defendants that it was tripling the monthly rental payment. When the defendants protested that the lease had been extended until 2017, Shields responded that the defendants' failure to make timely payments rendered them in default of their lease, making their attempted exercise of the option a nullity, and converting them to month-to-month tenants. After the defendants refused to pay the new monthly rent demanded by Shields, Shields instituted eviction proceedings. All lower courts found in favor of the defendants, reasoning that, by accepting the late payments, Shields waived its right to later argue noncompliance with the terms of the lease. On appeal, the court reversed. It held that, because the lease included nonwaiver language, including that acceptance of late payments did not constitute a waiver of the lease's provisions, this provision controlled. The court held that, while it was possible for a party to "wave" a "nonwaiver" provision, Shields' conduct did not support such a waiver. Shields, L.P. v. Bradberry, et al., Supreme Court, No. 15-0803, 5/12/17

15-0803
EVA M. GUZMAN, JUSTICE

Court of Appeals of Texas, Thirteenth

Texas Department v. Smith, 13-16-00082-CV (TexApp Dist 05/04/2017)

Laura Smith refused to give a breath sample during a traffic stop, and her driver's license was automatically suspended for 180 days. An administrative law judge upheld the suspension, and she appealed in county court, arguing he lacked substantial evidence that the officer had probable cause for the stop. The Texas Department of Public Safety, the appellant here, did not attend the hearing, despite notice, and the county court orally ruled for Smith. Three days later, appellant challenged jurisdiction, claiming Smith did not properly serve her petition of appeal. The county court issued a written ruling reinstating Smith's license, denied appellant's motion for a new trial, and an appeal followed. The court, substituting its original opinion, found that the requirements for Smith to serve the State Office of Administrative Hearings, and obtain a copy of the record from SOAH, do not implicate jurisdiction. Furthermore, it found the county court had a complete copy of the record. However, the court found that serving notice to the District Attorney, as Smith did, is not sufficient to notify the department of Public Safety. Although the District Attorney routinely represents the department at such hearings, the District Attorney is not the department's presumptive counsel and the trial judge noted that appellant was not represented, the court found. The court found appellant's due process rights were violated, and sustained appellant's objection that trial court abused its discretion by denying a new trial. The court reversed the trial court's judgment and remanded for further proceedings. Texas Department of Public Safety v. Smith, Corpus Christi Edinburg Court of Appeals, Case No. 13-16-00082-CV, 5/4/17.

13-16-00082-CV
DORI CONTRERAS, JUSTICE

Court of Appeals of Texas, Second District

Hines v. State of Texas, 02-15-00468-CR (TexApp Dist 05/04/2017)

A jury convicted appellant of one count of continuous sexual abuse of a child under the age of fourteen (count one) and a separate count of indecency with a child by contact (count five). In accordance with the jury's assessment, the trial court sentenced appellant to forty-five years' confinement on count one and twenty years' confinement on count five. On appeal, appellant challenged the sufficiency of the evidence to support his conviction on count one and the admission of outcry evidence relevant to count one. The court affirmed the conviction of count five for lack of challenge by the appellant, but reversed the conviction of count one holding the evidence was insufficient to support such conviction. The court found that the contact between the parties occurred less than thirty days apart and therefore fall outside the statutory requirement to establish continued sexual abuse. Tex. Penal Code Ann. §21.02(b)-(d). However, the court did find the outcry evidence was sufficient as the statement was more than words which gave a general allusion that something in the area of child abuse was going on. As such, because the evidence was legally insufficient to support the conviction under count one, the court found remand for a new trial on the lesser included offenses was the appropriate remedy to avoid an unjust acquittal. Joshua C. Hines v. The State of Texas, Fort Worth Court of Appeals, Case No.: 02-15-00468-CR, 05/04/2017

02-15-00468-CR
TERRIE LIVINGSTON, CHIEF JUSTICE

Court of Appeals of Texas, Eighth District

Bergenholtz v. Eskenazi, 08-15-00144-CV (TexApp Dist 05/03/2017)

Appellant Stephen Aaron Bergenholtz failed to pay most of a $1.1 million divorce settlement with Jospehine Eskenazi. After several years, she moved to reduce to judgment the remaining $852,000. The court ordered appellant to pay; when he still failed; Eskenazi moved for an appointment of receiver, which the court granted. An appeal followed on several grounds, along with two supplemental briefs. One of the briefs argued the receivership was void because the receiver was also Eskenazi's appellate attorney. The court, which received the case as a transfer, found that it was bound by the Dallas Court of Appeal's finding that the relevant statute did not apply. But even if it had, the court noted, the receivership would be valid. The court found that although Tex. Civ. Proc. & Rem. Code§64.021 provides that a receiver must not "be a party, attorney, or other person interested in the action for appointment of a receiver," it also did not void the receivership as a remedy. By contrast, the statute does render an appointment void when a receiver is disqualified on other grounds. The court overruled appellant's other supplement brief, which argued that the case was moot because Eskenazi non-suited her claims, finding that the record did not support his contention. The court overruled his original issues as well. On appellant's issue that the only remedy available to Eskenazi was a breach of contract claim, the court found the trial court could enforce the divorce settlement because he did not withdraw his consent. On his issue that the order to pay the $852,000 was not a final order, the court found that it reduced the settlement to judgment and disposed of his claims for offset. On his issue that the order was stayed by a previous motion to declare appellant a vexatious litigant, the court found appellant did not properly preserve the issue. The court affirmed the trial court's judgment. Bergenholtz v. Eskenazi, El Paso Court of Appeals, Case No. 08-15-00144-CV, 5/3/17.

08-15-00144-CV
YVONNE T. RODRIGUEZ. JUSTICE

Court of Appeals of Texas, Sixth Appellate District

In the Interest of J.Y., 06-16-00084-CV (TexApp Dist 04/28/2017)

The Texas Department of Family and Protective Services investigated a report of mother's neglectful supervision and physical neglect of her three elementary school-aged children. Mother refused to disclose information regarding specific allegations relating to previous domestic violence, current substance abuse issues, and her mental health status. Consequently, the Department petitioned to terminate the parental rights of both mother and father. After a bench trial, the trial court issued an order naming the Department as permanent managing conservator of the children and naming the parents as possessory conservators. On appeal, the court found the trial court's order appointing mother as the children's possessory conservator was within its discretion and that mother failed to preserve her due process and equal protection claims. The court noted the trial court properly determined the best interests of the children when issuing its conservatorship order, including impairment of the child's physical health or emotional development and mother's inability to provide adequate nutrition and a stable home. However, the court reversed the trial court's judgment finding it erred in having insufficiently specified the terms of mother's possession of or access to the children. Here, the court found it was in the children's best interest for mother to be the possessory conservator but failed to specify mother's access in accordance with Tex. Fam. Code Ann. §153.006(c) thereby requiring reversal of the trial court's order. In the Interest of J.Y., G.Y., and B.Y., children, Texarkana Court of Appeals, Case No.: 06-16-00084-CV, 04/28/2017

06-16-00084-CV
BAILEY C. MOSELEY, JUSTICE

United States Court of Appeals, Fifth Circuit

USA v. Colorado, 16-50326 (5th Cir. 05/05/2017)

After a jury convicted him of money laundering, and while Colorado faced sentencing before a federal judge in Austin, the FBI received a tip about a plan to bribe the judge. A sting operation followed and, eventually, federal bribery charges were filed against Colorado. Colorado then successfully moved to have the bribery trial moved to Louisiana federal court (because of pretrial publicity and the specter of a trial in an Austin courthouse where the target of the bribe still presided). After the transfer, the government obtained a superseding indictment from an Austin grand jury. Colorado was subsequently tried before a Louisiana federal court jury, and found guilty. On appeal, he argued that it was unlawful to obtain a superseding indictment from a grand jury located in a venue where the crime occurred (Austin), but from which the case had been transferred. He also argued that the district court erred by not offering a jury instruction that was based upon language from a Fifth Circuit case. On the first issue, the court held that, because there was no authority providing that a venue transfer displaces the authority of a federal grand jury to investigate and charge local crimes, Colorado could be tried on the superseding indictment. On the second issue, the court held that, although Colorado's proposed language accurately described the law, the trial court did not err in relying upon the standard jury instruction, especially where Colorado's proposed jury instruction did not meaningfully add to the explanation of the law. U.S. v. Colorado, 5th Circuit, No. 16-50326, 5/5/17

16-50326
GREGG COSTA, CIRCUIT JUDGE

Court of Appeals of Texas, Third District

Elite v. Autocraft, 03-15-00064-CV (TexApp Dist 05/05/2017)

Auto repair shop Autocraft Bodywerks, Inc., sued a competitor, appellant Precision Auto Body, for misusing trade secrets and related claims. Autocraft claimed that several of its former employees shared information with Precision after obtaining jobs there. Appellant sought dismissal under the Texas Citizens Participation Act, arguing the suit was based on appellant's exercise of its rights of association and free speech, and that it was a pretext for harassing the employees based on their association and speech. The trial court denied the motion, finding that appellant failed to meet its initial burden under the TCPA, and an appeal followed. The court found that although appellant's use of any trade secrets it received is far outside the bounds of "speech," the employees' sharing of the secrets falls under the plain language of the TCPA's definition of "communication" and is therefore protected. The court also rejected Autocraft's argument that these communications still didn't qualify for TCPA protection because they are communications for illegal purposes and therefore not subject to First Amendment protection. The court found that the Texas Supreme Court clarified in this year's ExxonMobil Pipeline Company v. Coleman decision (_ S.W.3d _, Case No. 15-0407) that the TCPA's definitions of protected expression are not limited to those protected by the First Amendment. The court found the TCPA does not explicitly incorporate constitutional protections, and thus, under Coleman's reliance on the plain language of the TCPA, it is not limited to constitutionally protected speech. The court affirmed in part, reversed in part and remanded for further proceedings. Elite Auto Body d/b/a Precision Auto Body v. Autocraft Bodywerks, Austin Court of Appeals, Case No. 03-15-00064-CV, 5/5/17.

03-15-00064-CV
BOB PEMBERTON, JUSTICE

Court of Appeals of Texas, First District

Baldit v. State of Texas, 01-16-00119-CR (TexApp Dist 05/02/2017)

The state charged appellant Derek Thomas Baldit with assault of a family member after an incident with his fiancé Laurita Elvir. The fiancé and her 6-year-old daughter testified that he shoved her against a door during an argument, then dragged her through the house in a struggle for her cellphone when she went to call police. A police deputy testified that appellant told him he had argued with Elvir, but that she hurt herself by grabbing onto his leg when he left the house. The jury convicted appellant of assault of a family member, the court sentenced him to 180 days, and he appealed. In his first issue, appellant argued the state provided insufficient evidence that he knowingly or intentionally hurt Elvir. The court noted that testimony showed the struggle over the phone carried on through multiple rooms of the house, that Elvir was screaming for appellant to let her have the phone, and that he was bigger than her. The court then held that a jury could infer appellant was aware his conduct could hurt Elvir, and therefore he acted with knowledge, overruling his issue. In appellant's second issue, he argued the trial court erred by allowing Elvir's daughter to testify. The court found that the daughter was coherent and consistent in her testimony, and demonstrated that she understood the difference between truth and a lie in questioning by the prosecutor. The court rejected appellant's argument that she was incompetent because she had spoken to Elvir about her testimony before trial, finding that any improper influence raises a question of credibility, not competence. The court also noted several courts have held there is no age threshold for competency. Having overruled both of appellant's issues, the court affirmed the trial court's judgment. Derek Thomas Baldit, Houston 1st Court of Appeals, Case No. 01-16-00119-CR, 5/2/17.

01-16-00119-CR
EVELYN V. KEYES, JUSTICE

Court of Appeals of Texas, Sixth Appellate District

Oringderff v. State of Texas, 06-16-00085-CR (TexApp Dist 04/24/2017)

Appellant was convicted of the offense of felony driving while intoxicated in violation of §§49.04 and 49.09(b) of the Texas Penal Code and was sentenced to fifty years' incarceration. On appeal, appellant claimed that the trial court erred in overruling his motion to suppress evidence and that the remaining evidence was insufficient to support his conviction. Appellant contended the officer did not have probable cause to stop him and that the stop and all evidence obtained from it were illegal under the Fourth Amendment. The court affirmed the trial court's judgment finding, under the totality of the circumstances, the officer had probable cause to effectuate the stop based on the anonymous 911 call which described appellant's location and vehicle, the caller reported that the vehicle was driving erratically, the officer's dash-cam video supported the vehicle weaving, and by drifting over the fog line, appellant committed a traffic offense. Based upon the facts, the officer had probable cause to stop appellant and the evidence of appellant's sobriety following the field sobriety tests was sufficient to support the jury's conviction. Accordingly, the trial court's judgment was affirmed. Shelton Lynn Oringderff v. The State of Texas, Texarkana Court of Appeals, Case No.: 06-16-00085-CR, 04/24/2017

06-16-00085-CR
RALPH K. BURGESS, JUSTICE

Court of Appeals of Texas, Thirteenth

State of Texas v. Haworth, 13-15-00519-CR (TexApp Dist 05/04/2017)

A police officer pulled over Wesley Wolfe Racliff Haworth after he made a U-turn and charged him with driving while intoxicated. Haworth moved to suppress all evidence because the officer could not have seen his turn signal. While ruling on the motion, the trial judge disclosed that he visited the site of the arrest, expressed his doubt that the officer could have had a line of sight, and granted the motion. The state appealed. The court found that under Gentry v. State (No. 06-05-00237-CR, Tex. App.—Texarkana), a judge commits structural error when failing to limit his ruling only to evidence adduced at trial. The court rejected Haworth's argument that Gentry didn't apply because the judge in Gentry had witnessed the underlying incident first-hand, whereas the judge in his case merely visited the site of Haworth's arrest. The court found the trial judge's actions to be even more troubling, because he sought out evidence outside the record to make his ruling. The court found that the judge presided and ruled despite becoming a witness, sustaining appellant's first issue, and that his ruling was based on facts outside the record, sustaining the second. The court also held both actions disqualified the judge, and his ruling was therefore void. The court reversed the motion to suppress and remanded for further proceedings. The State of Texas v. Wesley Wolfe Racliff Haworth, Corpus Christi-Edinburg Court of Appeals, Case No. 13-15-00519-CR, 5/4/17.

13-15-00519-CR
LETICIA HINOJOSA, JUSTICE

Court of Appeals of Texas, Third District

Elness v. RLJ II-C, 03-14-00738-CV (TexApp Dist 05/03/2017)

This case arose from alleged defects in the design and construction of a hotel near the airport in Austin. Appellee, the owner of the hotel at the time that the alleged defects were discovered, filed suit against multiple appellants alleging their work caused the hotel to have a defective foundation which caused building movement and further damage. The jury found appellant failed to comply with the contract and awarded appellee $785,000 in damages. Appellant was permitted a credit from prior payments made; appellee was further awarded attorney's fees. On cross-appeals, the court held appellee had capacity to sue as an assignee of the original hotel owner, which included an assignment of causes of action, which included the proper admission of the parties' contract. Further, based on the language that was provided in the jury charge, the record contained evidence other than the expert's testimony that was legally sufficient to support the jury's damages award. The court further affirmed the offset credit to the damages award, as well as the one-satisfaction rule, finding appellee failed to apportion damages to each appellant and the trial court properly applied the total of the two settlement amounts to the jury's awards of damages. However, the court found the trial court erred in awarding appellee attorney's fees as the application of the settlement credits reduced the judgment award of actual damages to $0 and therefore appellee did not obtain an "enforceable judgment" to which attorney's fees would apply. Accordingly, the judgment of the trial court was affirmed in part and reversed in part. Elness Swenson Graham Architects, Inc. v. RLJ II-C Austin Air, Austin Court of Appeals, Case No.: 03-14-00738-CV, 05/03/2017

03-14-00738-CV
CINDY OLSON BOURLAND, JUSTICE

United States Court of Appeals, Fifth Circuit

Equal v. BDO, 16-20314 (5th Cir. 05/04/2017)

Hang Bower, the former Chief Human Resources Officer for BDO, filed a charge of discrimination with the EEOC, alleging that BDO subjected her and other female employees to gender discrimination, retaliation, and a hostile work environment. BDO filed two position statements denying the allegations. In response to an EEOC requests for documents and an EEOC subpoena, BDO produced some documents, but claimed privilege over 278 other documents, which it listed on a privilege log. The EEOC filed a motion to compel, arguing that the privilege log was insufficiently detailed. The magistrate judge held that the privilege log was sufficient, that it appeared that BDO had properly asserted its claim of privilege and that she was not going to review each of the 278 documents individually. The EEOC filed objections to the magistrate judge's order, and appended a declaration from Bower in which she claimed that many of her communications (which were on the log) were not privileged because they were communications for business, and not legal, purposes. The district court affirmed the magistrate judge's order. The court reversed. It held that the privilege log was insufficient to establish a prima facie showing of attorney-client privilege because entries were vague and/or incomplete; entries failed to distinguish between legal advice and business advice; and entries failed to establish that the communications were made in confidence and that confidentiality was not breached. It remanded the matter to the district court for further proceedings, and suggested that an in camera review of the documents would likely be necessary. Equal Employment Opportunity Commission v. BDO USA, LLP, 5th Circuit, No. 16-20314, 5/4/17

16-20314
CARL E. STEWART, CHIEF JUDGE

United States Court of Appeals, Fourth Circuit

Reed v. MALTSBERGERStorey, 04-16-00231-CV (4th COA. 05/03/2017)

At issue in this appeal was the interpretation of a 1942 deed that conveyed to the grantees "an undivided one-fourth (1/4) interest in and to all of the oil, gas and other minerals in and under and that may be produced from the following described lands" but then proceeded to strip certain rights of mineral ownership from appellant-grantees. Appellants argued the trial court erred in determining that the 1942 deed conveyed a fixed non-participating royalty interest to the appellant; rather the deed conveyed a ¼ mineral interest and not a fixed royalty interest. The court reversed finding that the 1942 deed conveyed a ¼ mineral interest to the appellants. In determining whether the deeds at issue conveyed mineral interests or royalty interest, the court relied on Altman v. Blake, 712 S.W.2d 117, 118-19 (Tex. 1986) that "a mineral interest shorn of the executive right and the right to receive delay rentals remains an interest in the mineral fee." The court noted that the reservation of the various attributes of a severed mineral estate would have been redundant if only a royalty interest was conveyed. As the deeds at issue in this case conveyed an undivided interest in and to all of the oil, gas and other minerals in and under the property, the court held that the deeds conveyed mineral interests. Despite the 1942 deed being titled "Royalty Deed", the court looked at the instrument as a whole and determined the title was not determinative on its own – that the interest conveyed was a mineral interest and not a royalty interest. Reed v. Maltsberger/Storey Ranch, LLC, San Antonio Court of Appeals, Case No.: 04-16-00231-CV, 05/03/2017

04-16-00231-CV
KAREN ANGELINI, JUSTICE

United States Court of Appeals, Fifth Circuit

Doe v. Columbia-Brazoria, 16-40882 (5th Cir. 05/03/2017)

In 2014, Doe sued his former school district, alleging that he was sexually assaulted in 2002 and that the district was liable for the resulting physical and mental injuries. The school district moved to dismiss the complaint, which the trial court denied "without prejudice to refiling." At a later status conference, the district court offered the school district an opportunity to re-urge its motion within a specified time. The school district timely filed its second motion to dismiss, which the district court granted. The court affirmed. It first held that that the district court did not err in allowing successive motions to dismiss. It held that Rule 12(h) of the Federal Rules of Civil Procedure allowed the second motion here, which also could have been presented in a Rule 12(c) motion. On the merits, the court agreed that the complaint failed to state a claim. First, because there was no state conduct, and no special relationship between Doe and the state, his §1983 claims were properly dismissed. Next, because there was no allegation that the district had actual knowledge of the alleged assault, Doe could not establish his Title IX claim. Finally, because Doe pled no facts that he was disabled, his claims for violations of Section 504 and the ADA failed as a matter of law. Doe v. Columbia-Bradoria Indep. Sch. Dist., 5th Circuit, No. 16-40882, 5/3/17

16-40882
LESLIE H. SOUTHWICK, CIRCUIT JUDGE

Court of Appeals of Texas, Sixth Appellate District

Vanhalst v. State of Texas, 06-16-00080-CR (TexApp Dist 04/12/2017)

Appellant Dustin Vanhalst was convicted of the brutal murder of Jay Clements and sentenced to 47 years. The state's theory was that appellant believed Clements sodomized him while appellant was blacked out on meth and murdered him in retaliation. Appellant's longtime friend, Justin Deen, testified that he had helped appellant report Clements' alleged assault to police. He also testified that he refused to loan appellant a gun several times and refused to drive appellant to Clements' house the night of the murder, and that appellant had showed up at his own house later on and admitted to the murder. Deen testified that he burned Vanhalst's clothes that night and did not report the murder for five days. On appeal, appellant argued that Deen was an accomplice and the trial court had insufficient evidence to corroborate his testimony, as required by Tex. Code Crim. Proc. Art. 38.14. The court found that under Druery v. State (225 S.W.3d 491), a person who helps conceal and fails to disclose a crime is not necessarily an accomplice. A party must be subject to prosecution for the crime itself to be an accomplice, and Deen was not. Because Deen was not an accomplice, the court held that there was no need to corroborate his testimony. The court affirmed the trial court's judgment. Dustin Vanhalst v. The State of Texas, Texarkana Court of Appeals, Case No. 06-16-00080-CR, 4/12/17.

06-16-00080-CR
RALPH K. BURGESS, JUSTICE

Court of Appeals of Texas, Eighth District

Bernal v. State of Texas, 08-14-00158-CR (TexApp Dist 05/03/2017)

Appellant Cruz Lopez Bernal was watching his then-girlfriend's 8-month-old daughter when the infant suffered a serious head injury. She went to the hospital with a skull fracture and swelling of the brain, among other injuries, and required life-saving surgery. Appellant claimed the baby fell when he turned his back, but a doctor testified that "significant violent force" caused the injuries. During trial, the jury heard a tape of appellant speaking to police and revealing that he had a prior criminal history. His attorney had moved before trial to preclude the state from offering evidence of his criminal history, although the court never ruled on the motion and appellant's attorney did not object to the tape during trial. The attorney also declined to give an opening statement or call any defense witnesses. The jury convicted appellant of injury to a child and sentenced him to 70 years, and he appealed, arguing ineffective assistance of counsel on several grounds. The court found that deferring, and then declining, an opening statement is a common strategy. The court noted that when, as here, an attorney believes she makes a sufficient case solely by attacking the state, other tactics can be "disadvantageous." Next, the court found that appellant and the record did not identify a specific witness who might have helped his case. The court found it "problematic" that the attorney failed to obtain a pre-trial ruling on the motion to exclude and failed to object to the police tape during trial. However, it also found those decisions might have been part of a strategy to undercut the police officer's credibility, and therefore did not rise to ineffective assistance. Lastly, the court overruled his charge of failure to request a directed verdict, finding that the state offered ample evidence to overcome such a request. The court affirmed the trial court's judgment. Cruz Lopez Bernal v. The State of Texas, El Paso Court of Appeals, Case No. 08-14-00158-CR, 5/3/17.

08-14-00158-CR
YVONNE T. RODRIGUEZ. JUSTICE

Court of Appeals of Texas, Fourteenth

Rodriquez v. State of Texas, 14-16-00579-CV (TexApp Dist 05/02/2017)

Appellant was found not guilty by reason of insanity in the capital murder of her infant child. Following her acquittal, the trial court issued an order involuntarily committing appellant to inpatient treatment at a mental hospital. During the most recent review of her commitment, the mental hospital recommended appellant receive treatment on an outpatient basis. Appellee opposed and the trial court conducted a non-jury hearing concluding that appellant still met the criteria for involuntary commitment. On appeal, the court was tasked with determining whether the trial court had jurisdiction to issue the order and whether there was legally sufficient evidence to support the order. The court found the trial court had jurisdiction to adjudicate the question of appellant's involuntary commitment under Tex. Code of Crim. Proc. Article 46.03. The statute required the commitment of a person to a mental hospital if the person was found guilty by reason of insanity in a case involving serious bodily injury to another. However, the court reversed the order finding there lacked sufficient evidence to support the continued involuntary commitment of appellant. Despite the expert testimony finding appellant was a person with a mental illness and that her condition was expected to continue for more than 90 days, the evidence failed to support the trial court's finding that appellant was likely to cause serious harm to others as a result of her mental illness. Accordingly, the commitment order was reversed. Evonne Michelle Rodriquez v. The State of Texas, Houston 14th Court of Appeals, Case No.: 14-16-00579-CV, 05/02/2017

14-16-00579-CV
TRACY CHRISTOPHER, JUSTICE

United States Court of Appeals, Fifth Circuit

USA v. Broca-Martinez, 16-40817 (5th Cir. 04/28/2017)

Broca-Martinez was stopped by a police officer (Leal) because his car matched a description of a car owned by an individual involved in housing undocumented immigrants. When Leal first saw the car, he entered the license plate into his computer, and it came back "unconfirmed." Believing that meant the car was unregistered, in violation of Texas law, Leal stopped Broca-Martinez, who admitted that he was in the country illegally. HHS officials then arrived and obtained permission to search Broca-Martinez's house, where they found 14 undocumented immigrants. After Broca-Martinez was indicted, he moved to suppress the evidence, arguing that there was no reasonable suspicion to stop his vehicle. After a hearing, the district court denied the motion to suppress. Broca-Martinez then entered a guilty plea, while reserving his right to appeal the denial of his motion to suppress. The court joined several other circuits in holding that a state computer database indication of insurance status may establish reasonable suspicion, where there is evidence suggesting the database is reliable (or at least not unreliable). Applied to the facts here, the court held that the database information, together with Officer Leal's testimony about the reliability of the database, provided reasonable suspicion for the stop. It accordingly held that the trial court correctly denied Broca-Martinez's motion to suppress. United States v. Broca-Martinez, 5th Circuit, No. 16-40817, 4/28/17

16-40817
EDWARD C. PRADO, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

Burdett v. Remington, 16-11216 (5th Cir. 04/19/2017)

Burdett alleged that he was hunting when his rifle suddenly discharged, sending a bullet through his left foot. He sued the manufacturers, alleging products liability and deceptive practices claims. The defendants moved for summary judgment, arguing that, because Burdett alleged he purchased the rifle in approximately 1998, but did not commence his suit until 2015, it was barred by Texas' 15-year statute of repose. In response, Burdett argued that New York law applied to the suit (because one of the manufacturers was located there) and that New York does not have a statute of repose. The trial court held that the Texas law applied to the dispute and that, because Burdett admitted it filed suit more than 15 years after he purchased the rifle, the defendants were entitled to summary judgment. The court affirmed. It held that it was bound by its precedent, which held that Texas Code §71.031 was a "codified choice of law" provision that applies in federal court. Applying Texas law to the suit meant that Texas' statute of repose applied to the suit. Because Burdett admitted his suit was filed more than 15 years after he purchased the rifle, the court held that summary judgment was properly granted to the defendants. Burdett v. Remington Arms Company, LLC, et al., 5th Circuit, No. 16-11216, 4/19/17

16-11216
JUNELL, DISTRICT JUDGE

Court of Appeals of Texas, Fourteenth

Cain v. State of Texas, 14-16-00141-CR (TexApp Dist 05/02/2017)

Appellant Clarence Cain received three consecutive 25-year sentences after pleading guilty to three aggravated robberies in a combined trial. A pre-sentence report indicated appellant might have mental illness and addictions, and he appealed on grounds that the trial court erred in failing to order psychological and substance abuse evaluations in the report, along with other grounds. The court rejected appellant's argument that the evaluations are a systemic right that cannot be waived. The court found that courts consistently hold the evaluations can be waived, and that a party must object to the omission of such evaluations, which appellant did not. On appellant's second issue, the court found his attorney's failure to object did not constitute ineffective assistance of counsel. The court found that the record was silent on the attorney's reasons for declining to object, and thus the court could not conclude that the failure to object was outside of competent strategy. On appellant's final issue, duplicative costs and fees, the court found that the trial court improperly assessed costs for all three convictions but rejected appellant's argument that only the lowest cost is recoverable. The court imposed the highest cost to properly compensate the state. The court modified two of the judgment to delete costs and fees, then affirmed all three judgments. Clarence Cain v. The State of Texas, Houston 14th Court of Appeals, Case No. 14-16-00141-CR, 5/2/17

14-16-00141-CR
MARTHA HILL JAMISON, JUSTICE

Court of Appeals of Texas, Fourteenth

Kolb v. The State of Texas, 14-15-00658-CR (TexApp Dist 04/06/2017)

Appellant pushed her boyfriend's four-year-old daughter off a bed while she was intoxicated and upset with the girl's father. The fall injured the girl's spinal cord, paralyzing her lungs and ultimately causing her death by asphyxiation. A jury convicted appellant of recklessly causing serious bodily injury to a child. On appeal, appellant challenged the sufficiency of the evidence, admission of the medical examiner's expert testimony, and the trial court's refusal to dismiss the case based on alleged withholding of evidence by appellee. The court affirmed finding (1) the evidence was sufficient to show that appellant acted recklessly in pushing the child off the bed, even if the specific resulting injury was not foreseeable; (2) the medical examiner's testimony was admissible; and (3) appellee did not withhold evidence or produce evidence in an untimely manner. The court noted that the injury to a child statute required that appellant intend bodily injury generally – it did not require appellee to prove that appellant intended the specific injury that resulted or that she had knowledge that the exact injury would result. Tex. Penal Code Ann. §22.04(a). Based on the evidence presented, a rational jury could conclude that causing a sleeping child to hit the floor head-first constituted a reckless act by appellant which led to serious bodily injury. Moreover, the court found the medical examiner's testimony was reliable and was freely challenged through cross-examination and presentation of her own expert testimony. Finally, appellant failed to establish that appellee withheld evidence or failed to timely produce evidence under Brady v. Maryland, 373 U.S.C. 83 (1963). Laura Lea Kolb v. The State of Texas, Houston's 14th Court of Appeals, Case No.: 14-15-00658-CR, 04/06/2017

14-15-00658-CR
WILLIAM J. BOYCE, JUSTICE

Supreme Court of Texas

Leah Anne v. Lenoir, 15-0610 (TexApp Dist 04/28/2017)

Respondent and her unborn child passed away following a progesterone injection provided at the University of Texas Physicians Clinic. Respondent, decedent's estate, brought a medical malpractice suit against petitioner, a second-year medical resident whom saw the decedent and prescribed the weekly injections. Petitioner moved to dismiss the claim on grounds that she was an employee of a governmental unit under the election-of-remedies provision of the Tort Claims Act. The trial court granted dismissal but the court of appeals reversed concluding petitioner failed to establish she was an employee of a governmental unit. The Supreme Court affirmed the judgment of the court of appeals holding the statute precluded petitioner's claim to employee status under the evidence presented. Although petitioner offered proof that she was paid by a government unit, the statute expressly excluded "a person who performs tasks the details of which the governmental unit does not have the legal right to control." The Supreme Court noted the foundation to which petitioner belonged specifically had bylaws which state it did not control or own any hospital, clinic or other health care facilities. Rather, the foundation paid petitioner for certain routine administrative functions, but such functions did not rise to the level of controlling petitioner's daily tasks as a physician. As such, the evidence demonstrated that petitioner was not an employee of the foundation under the Tort Claims Act and the court of appeals correctly reversed the trial court's dismissal of petitioner. Marino v. Lenoir, Supreme Court, Case No.: 15-0610, 04/28/2017

15-0610
DON R. WILLETT, JUSTICE

Supreme Court of Texas

Rogers v. Zanetti, 15-0557 (TexApp Dist 04/28/2017)

The underlying malpractice action arose out of a failed investment by petitioner in a home-healthcare company. Petitioner was sued, and found responsible, for conversion and fraud following allegations he misappropriated the company's funds under a guise of attempting to purchase the company. Several years later, petitioner sued his attorneys, respondents, alleging malpractice; petitioner alleged a conflict of interest between the attorneys who negligently drafted the investment agreement. Respondents moved for summary judgment arguing there was no evidence of causation, collateral estoppel, and that the statute of limitations barred the legal malpractice action. The district court, subsequently affirmed by the court of appeals, granted summary judgment finding petitioner failed to raise a fact issue as to causation. The Supreme Court affirmed concluding the court of appeals did not err in applying the traditional cause-in-fact standard to petitioner's claim and finding that petitioner failed to show that respondent's negligence was the proximate cause of cognizable damage. The court stated its cause-in-fact standard required not only that the act or omission be a substantial factor but also that it be a but-for cause of the injury or occurrence. Further, petitioner failed to supply a causal link between respondent's alleged negligence and his damages. As petitioner lacked demonstrative evidence to raise a material issue as to the causation element of his negligence claim, the Supreme Court affirmed the grant of summary judgment in favor of respondents. Rogers v. Zanetti, Supreme Court, Case No.: 15-0557, 04/28/2017

15-0557
JOHN P. DEVINE, JUSTICE

Court of Appeals of Texas, Fourteenth

Kressin v. State of Texas, 14-15-00918-CR (TexApp Dist 04/27/2017)

Appellant Brittni Kressin drove onto a freeway exit ramp and hit another car, killing a passenger. She refused to provide police a breath test or blood draw, and the responding officer obtained a warrant. The officer took appellant to a hospital, which took two blood samples, roughly half an hour apart and both after the warrant was signed according to hospital records. The officer testified at trial, however, that only the second blood draw came after the warrant, and the first qualified as an exigent circumstances exception to the warrant requirement. The court denied appellant's motion to suppress the blood draw evidence, convicted appellant of intoxication manslaughter, and sentenced her to six years. On appeal, she argued the evidence was obtained without a warrant and without showing an exception to the warrant requirement. The court found that both blood draws were taken pursuant to a valid warrant. Although the police officer testified otherwise, the court found the trial court was free to disregard his testimony in light of the evidence of hospital records showing both draws were taken after the warrant was signed. Although the court noted the holding in Missouri v. McNeely (133 S.Ct. 1552) that dissipation of alcohol in the blood does not inherently create exigent circumstances, it found there was no need for an exception because both draws were made pursuant to a valid warrant. The court affirmed the trial court's judgment. Brittni Kressin v. The State of Texas, Houston 14th Court of Appeals, Case No. 14-15-00918-CR, 4/27/17.

14-15-00918-CR
JOHN DONOVAN, JUSTICE

Court of Appeals of Texas, Eighth District

Wausau Underwriters v. Wedel, 08-16-00120-CV (TexApp Dist 04/26/2017)

James Wedel suffered injuries that left him a paraplegic while working as a driver for Cactus Transport at a facility owned by Western Refining Company. Cactus' insurance company, appellant Wausau Business Insurance, paid him $1.5 million under a policy waiving its right to recover "from others." When Wedel later sued Western, appellant intervened asserting subrogation rights. Wedel settled with Western and sought summary judgment of appellant's claim, which the trial court granted, finding that appellant waived subrogation. An appeal followed, on grounds that the waiver clause did not prevent reimbursement from Wedel. Appellant argued that subrogation and reimbursement are independent rights, but the court found that Texas courts routinely hold that the two rights are not distinct. The court also found that although subrogation is generally mandatory, Texas law allows parties to waive it by contract and that appellant did so. Appellant also argued that the clause waived subrogation only against the party liable for Wedel's injury – namely Western – and not against Wedel. The court rejected this argument, finding that it would force the court "to conclude that the policy otherwise allows Wausau to recover those same benefit payments directly from Wedel, the injured worker, that it concedes it cannot recover from Western, the liable third-party." Appellant also raised a choice of law issue, because Wedel lives in Arizona and the injury occurred in Texas, but the court declined to reach that issue. The court affirmed the trial court's judgment. Wausau Underwriters v. Wedel, El Paso Court of Appeals, Case No. 08-16-00120-CV, 4/26/17.

08-16-00120-CV
GINA M. PALAFOX, JUSTICE

Supreme Court of Texas

El Paso Healthcare v. Murphy, 15-0575 (TexApp Dist 04/28/2017)

Murphy worked for West Texas OB Anesthesia as a certified registered nurse anesthetist. Through a contract between West Texas OB and El Paso Healthcare, Murphy (and other practitioners) were offered, and often accepted, certain shifts at Las Palmas Medical Center, a medical facility owned by El Paso Healthcare. During one shift, Murphy became concerned about whether a doctor had adequately obtained a patient's informed consent for a procedure, and expressed those concerns to Las Palmas' ethics coordinator. She alleged that the doctor then called West Texas OB and complained that Murphy had interfered with his treatment and management of the patient. West Texas OB subsequently told Murphy that she should not return to work at Las Palmas until further notice. When Murphy was not returned to Las Palmas, she filed suit against El Paso Healthcare for statutory retaliation and tortious interference with "the continuation of the business relationship between" Murphy and West Texas OB. The jury found El Paso Healthcare liable on both causes of action and awarded Murphy damages. After the court of appeals affirmed, the court granted El Paso Healthcare's petition for review. It held that, while the Texas Health and Safety Code allows a plaintiff to sue for retaliation if the plaintiff reported a violation of law in good faith, because Murphy was not present during the doctor's informed consent conversation with the patient, the record did not support a finding that Murphy's subjective belief was objectively reasonable. The court held that El Paso Healthcare was also entitled to judgment on the tortious interference claim because West Texas did not promise Murphy any specific hours at Las Palmas and, as a result, the record did not support a finding that El Paso Healthcare interfered with Murphy's legal rights under her existing agreement with West Texas. El Paso Healthcare System, Ltd. v. Murphy, Supreme Court, No. 15-0575, 4/28/17

15-0575
JEFFREY S. BOYD, JUSTICE

United States Court of Appeals, Fifth Circuit

Prystash v. Davis, 16-70014 (5th Cir. 04/26/2017)

Two decades after being sentenced to death for being the middleman in a murder-for-hire, appellant sought a certificate of appealability to appeal the district court's denial of his petition for a writ of habeas corpus. Appellant sought certification as to (1) whether there was cause for the procedural default of his Batson claim; (2) whether the state's withholding of evidence of the involuntariness of a codefendant's confession established a Brady violation; (3) limitation of mitigation evidence; (4) Eighth Amendment violation; and (5) whether he was unconstitutionally sentenced to death without an anti-parties jury instruction. The court denied a certificate of appealability holding appellant failed to show that a reasonable jurist would find the district court's assessment of the constitutional claims debatable or wrong. The court noted appellant failed to bring issues of procedural defect under Batson previously and therefore was not subject to review. Further, the district court relied on overwhelming evidence of appellant's guilt apart from the codefendant's confession and therefore a jurist of reason would not disagree with the district court's conclusion. Finally, the court denied a COA finding appellant failed to show that the state's introduction of mitigation evidence in other capital cases caused a fundamental unfairness in his matter or that the district court adjudicated the case other than on its merits. As such, the court denied the grant of a certificate of appealability. Joseph Andrew Prystash v. Lorrie Davis, Fifth Circuit, Case No.: 16-70014, 04/26/2017

16-70014
GREGG COSTA, CIRCUIT JUDGE

Supreme Court of Texas

Bartush-Schnitzius Foods v. Cimco Refrigeration, 16-0054 (TexApp Dist 04/28/2017)

Bartush contracted with Cimco to install a new refrigeration system. When the installed system did not work as Bartush wanted, it stopped making payments to Cimco, and paid a new refrigeration company $168,079 to install an alternate unit. Bartush and Cimco then sued each other, with Cimco alleging it was owed the balance on the contract and Bartush alleging it was due its replacement costs. The jury found both parties beached the agreement, that Cimco breached the agreement first, but that Bartush's breach was not excused. It awarded Bartush $168,079 in damages (the cost of installing the alternate unit), plus $215,000 in trial and conditional appellate attorney's fees, and awarded Cimco $113,400 (the balance due on the contract). Believing that the jury's verdict was actually for Bartush, the trial court entered judgment in Bartush's favor for $168,079 in damages and awarded nothing to Cimco. The intermediate appellate court reversed. It held that Bartush's failure to pay the balance due was a material breach of the contract as a matter of law, which rendered irrelevant the jury's finding that Cimco breached first. It ordered the trial court to enter judgment in Cimco's favor in the amount of $113,400 in damages, plus interest and costs. Both parties appealed. The court first agreed with the intermediate appellate court that the jury made an implied finding that Cimco's prior breach was not material. It held that the record supported the jury's implied finding, so that the trial court's judgment was in error. It held, however, that the court of appeals erred when it concluded that Bartush's breach barred its recovery of damages for Cimco's failure to perform a preexisting obligation. It remanded the case for further proceedings. Bartush-Schnitzius Foods Co. v. Cimco Refrigeration, Inc., Supreme Court, No. 16-0054, 4/28/17

16-0054

Supreme Court of Texas

Pedernal Energy v. Bruington Engineering, 15-0123 (TexApp Dist 04/28/2017)

Petitioner brought the underlying action for damages resulting from a fracturing operation on its gas well alleging that respondent provided substandard engineering services in connection with the operation, but failed to file a certificate of merit expert affidavit with its claim. Respondent moved for dismissal prompting petitioner to non-suit and refile by amended petition accompanied by an expert affidavit. The trial court denied dismissal and the matter was remanded following appeal; the trial court then dismissed petitioner's amended claim without prejudice. Respondent again appealed with the court of appeals holding Civ. Prac & Rem Code §150.002 required petitioner's claim to be dismissed with prejudice because an expert affidavit was not filed with the original petition. The Supreme Court reversed the judgment of the court of appeals and reinstated the judgment of the trial court. The Supreme Court noted §150.002(e) required dismissal of the claims against petitioner, but the statute afforded trial courts discretion to dismiss either with or without prejudice. Further, the Supreme Court held that the first sentence of the statute required dismissal but did not specify whether it was to be with or without prejudice. Reading the first sentence of the statute with the second, it was clear that the legislature intended the dismissal language in the first sentence to reference dismissal without prejudice. Under the record and interpreting the statute in a way that gave meaning to all its words, the trial court did not abuse its discretion by dismissing the claims without prejudice. Pedernal Energy, LLC v. Bruington Engineering, Ltd., Supreme Court, Case No.: 15-0123, 04/28/2017

15-0123
PHIL JOHNSON, JUSTICE

United States Court of Appeals, Fifth Circuit

Jacked Up v. Sara Lee, 15-11019 (5th Cir. 04/25/2017)

The parties executed a licensing agreement whereby appellee would produce and sell energy drinks developed by appellant. Shortly thereafter, appellee sold its beverage to a division of defendant-appellee who decided not to assume the parties' licensing agreement. Appellant brought suit alleging breach of contract, breach of fiduciary duty, fraud, and fraudulent inducement as well as claims against defendant-appellee for tortious interference and trade secret misappropriation. On motion, the district court granted summary judgment on various grounds against appellant as to all claims. Following a timely appeal whereby appellant argued that issues of fact precluded summary judgment, the court reversed summary judgment in part holding the licensing agreement was ambiguous regarding termination terms and effectuation date once triggered. The court further reversed summary judgment for fraud finding the allegations supported appellant's common law fraud claims and there existed a genuine dispute of fact as to whether appellant's reliance on appellee's alleged representations was justifiable. However, the court affirmed summary judgment as to breach of fiduciary duty concluding appellant failed to point to sufficient evidence that would support finding a fiduciary relationship between the parties. Finally, the court affirmed summary judgment in favor of defendant-appellee finding no evidence supported its actions being unjustified or that defendant-appellee acquired any trade secrets. Accordingly, summary judgment was affirmed in part and reversed in part. Jacked Up, L.L.C. v. Sara Lee Corp., Fifth Circuit, Case No.: 15-11019, 04/25/2017

15-11019
EDWARD C. PRADO, CIRCUIT JUDGE

Court of Appeals of Texas, Eighth District

Leonard v. State of Texas, 08-14-00139-CR (TexApp Dist 04/26/2017)

Appellant Thomas Leonard pulled a gun on a family of visitors to his mother's house, including two children. The family had come asking to see her to deliver donations for his father's funeral expenses. At a trial in which appellant ran through several public defenders and periodically represented himself pro se, a jury convicted him of four counts of aggravated assault. Appellant was sentenced to two years each on the first two counts and 10 years of probation on the second two. He appealed, but because he failed to file a brief despite numerous extensions, the court limited its review to fundamental errors. The court addressed a motion appellant filed during appeal alleging denial of counsel at critical stages. The court found two gaps in coverage. The first occurred during a time that appellant could have filed motions to disqualify various trial judges involved in the case. Because he was not limited to that time to file the motion, and because a court allowed the motion later in the trial, the court found this gap was not a critical stage mandating counsel representation under the Sixth Amendment. During the second gap, appellant did not have assistance of counsel when moving for a judge to recuse herself. The court found this is a critical stage, but that the error was harmless because appellant is a lawyer who filed "an articulate motion" that he "vigorously argued," and thus the absence of counsel did not result in a loss of any rights. In the only other issue before the appeals court, the court found that the trial court properly issued appellant warnings about pro se representation required under Farreta v. California (422 U.S. 806). The court affirmed the trial court's judgment. Thomas Leonard v. The State of Texas, El Paso Court of Appeals, Case No. 08-14-00139-CR, 4/26/17.

08-14-00139-CR
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

Court of Appeals of Texas, Fourteenth

Engineering and Terminal v. Tarsco, 14-16-00424-CV (TexApp Dist 04/27/2017)

Appellant Engineering and Terminal Services hired TARSCO and Orcus Fire Protection as subcontractors to its contract with Buckeye Partners. Appellant later sued Buckeye Partners, and Buckeye countersued for $3 million worth of errors, in part based on the work of the subcontractors. Appellant sought contribution damages from the subcontractors, but did not file a certificate of merit, which the subcontractors argued was required. The trial court dismissed the third- contribution claim and an appeal followed, challenging whether Tex. Civ. Prac. & Rem. Code §150.002 required a certificate of merit for third-party plaintiffs. The court found that the relevant section, titled "Certificate of Merit, required "the plaintiff" in an action involving engineering damages to file an expert affidavit. The court also found that the term "plaintiff" as used in the code refers only to the party that brought the action, under Jaster v. Comet II Construction, Inc. (438 S.W.3d 556). Although appellant brought the original action, it did not bring the countersuit that led to its third-party petition for contribution damages, and thus it was not "the plaintiff" for purposes of §150.002 under Jaster. The court, echoing the reasoning of Jaster, noted that defendants and cross-claimants are under the same time constraints to respond to an action, and that both need to deny the claims levied against them while simultaneously seeking contribution for third parties should they lose their case. As such, imposing the Certificate of Merit requirement on cross-claimants would hamper them as much as it would a defendant. The court also noted that the Jaster opinion emphasized the point that the Legislature could have used the term "claimant" instead of "plaintiff" if it intended to impose the requirement on a cross-claimant. The court also rejected the subcontractors' argument that Jaster was not binding because it was decided by a plurality of four justices, noting that a fifth justice issued a concurring opinion and thus a majority of the Supreme Court agreed on the law in principal. The court reversed the trial court's dismissal and remanded. Engineering and Terminal Services v. TARSCO, Inc., Houston 14th Court of Appeals, Case No. 00424-CV, 4/27/17.

14-16-00424-CV
KEVIN JEWELL, JUSTICE

Supreme Court of Texas

Forest Oil v. El Rucio Land, 14-0979 (TexApp Dist 04/28/2017)

The owner of a ranch (McAllen) commenced an arbitration against Forest, a natural gas producer, for environmental contamination and improper disposal of hazardous materials on the ranch. At the same time, the Texas Railroad Commission, which regulates oil and gas operations in Texas, referred Forest to its voluntary cleanup program to propose and implement plans to remediate soil and groundwater conditions affected by its operations on the ranch. In the arbitration, the parties were unable to agree on a third arbitrator, so one was appointed by a state court judge. A divided panel of the arbitrators refused Forest's request to stay the arbitration pending final rulings by the RRC and awarded McAllen compensatory damages, punitive damages and attorney's fees. Forest moved to vacate the arbitration award in the trial court, arguing that the RRC had exclusive or primary jurisdiction over McAllen's claims, precluding the arbitration; that the third arbitrator was not impartial; and that the damages awards were in manifest disregard of Texas law. Both the trial court and the intermediate appellate court rejected these arguments. The court agreed. It first held that nothing in the RRC's statute demonstrated the legislature's clear intent to provide exclusive jurisdiction over environmental contamination claims. It next held that, because McAllen's claims were inherently judicial, the doctrine of primary jurisdiction did not apply. It finally held that there was insufficient evidence to show that the third arbitrator was biased, and that the panel's award was within the authority provided by the parties' agreement. Forest Oil Corp. v. El Rucio Land & Cattle Co., Inc., et al., Supreme Court, No. 14-0979, 4/28/17

14-0979
NATHAN L. HECHT, CHIEF JUSTICE

United States Court of Appeals, Fifth Circuit

USA v. McClure, 15-41641 (5th Cir. 04/25/2017)

Law enforcement discovered that McClure was involved in public corruption and narcotics trafficking activities. During the course of that investigation, they discovered that McClure, a felon, was also in possession of a firearm. McClure was indicated on the charge of possessing a firearm as a felon. Prior to trial, he entered into a plea agreement with the government where he pled guilty in exchange for a promise that the government would not prosecute McClure for additional charges "based upon the conduct underlying and related" to the guilty plea. After sentencing, McClure was indicted for drug conspiracy, use and possession of a firearm during a drug trafficking crime, and possession of a (different) firearm by a felon. The district court denied McClure's motion to dismiss the indictment (on the basis that it was barred by the plea agreement). On appeal, the court affirmed. It held that the two cases involved separate and distinct courses of conduct, at different times, implicating different statutory violations, so that the second set of charges were not barred by the terms of the plea agreement. The court held that any subjective belief by McClure, as to the scope of the plea agreement, was contrary to the objective facts. United States v. McClure, 5th Circuit, No. 15-41641, 4/25/17

15-41641
JAMES E. GRAVES, JR., CIRCUIT JUDGE

Supreme Court of Texas

ETC Marketing v. Harris County, 15-0687 (TexApp Dist 04/28/2017)

ETC purchases natural gas that is stored by its Texas affiliate (HPL) until it is transported outside the state through a pipeline system. In 2010, Harris County assessed ad valorem taxes on ETC for the value of the stored gas. ETC argued that the gas was in the stream of interstate commerce, and thus immune from taxation under the Commerce Clause. After Harris County rejected this argument, ETC appealed to state court. The state court granted Harris County's motion for summary judgment. A divided intermediate appellate court affirmed, explaining that, even if the gas was in interstate commerce, Harris County had satisfied the Supreme Court's Complete Auto Transit, Inc. v. Brady test for constitutional taxing of products in interstate commerce. On appeal, the court analyzed the four Complete Auto factors and found that all were satisfied because: (1) the gas had a substantial nexus to Texas; (2) the tax was fairly apportioned to activities within the state; (3) the ad valorem tax did not discriminate against interstate commerce; and (4) the tax was reasonably related to the services provided by the state. The court accordingly held that Harris County's tax did not violate the Commerce Clause. ETC Marketing, Ltd. v. Harris County Appraisal Dist., Supreme Court, No. 15-0687, 4/28/17

15-0687
JOHN P. DEVINE, JUSTICE

United States Court of Appeals, Fourth Circuit

Quintanilla v. West, 04-16-00533-CV (4th COA. 04/26/2017)

Appellant Oscar Quintanilla hired Bradford West to run commodity trading businesses, with profits and losses split 50-50. After West lost $14 million, with his share of losses outstripping a $5 million promissory note, appellant halted trading and the two entered an agreement for West to convey personal and business assets to appellant. However, they disagreed as to whether the agreement satisfied the promissory note, and appellant filed a financing statement to perfect his interest in the collateral securing the note. West sued for a declaratory judgment that the agreement satisfied the note, and also asserted claims for slander of title and fraudulent liens, alleging falsehoods in appellant's financing statements. Appellant moved to dismiss those claims, arguing they were in retaliation for his filing and thus violated the Texas Citizens Participatory Act. The trial court denied, finding that the TCPA covers those claims but that West established a prima facie case for his claims and appellant failed to establish defenses, and an appeal followed. The trial court found that a financial statement is an exercise of free speech on a matter of public concern, and therefore covered by the TCPA, because it communicates to potential buyers that an asset might be encumbered. The court also found that because appellant filed his statement in anticipation of litigation, they are also covered under the TCPA's protection for the right to petition. Furthermore, the court found that West did not establish a prima facie case because he used inadmissible parol evidence to do so. The court reversed the trial court's judgment and remanding for an order of dismissal and to award appellant attorney's fees and other costs. Quintanilla v. West, San Antonio Court of Appeals, Case No. 04-16-00533-CV, 4/26/17.

04-16-00533-CV
REBECA C. MARTINEZ, JUSTICE

Supreme Court of Texas

Bennett v. Grant, 15-0338 (TexApp Dist 04/28/2017)

Bennett instructed Grant, his ranch hand, to round up and sell 13 cattle belonging to Bennett's neighbor. Grant took photographs of the cattle as they were sold and, ultimately, gave the photos to the police. Bennett then persuaded a special prosecutor (his neighbor) to indict Grant for blackmail. However, a court subsequently quashed the indictments as barred by the statute of limitations. Grant then filed a malicious prosecution suit against Bennett and his lawyer. A jury awarded Grant $10,703 in actual damages ($5,000 for mental anguish and $5,703 in attorney fees), and $1 million each against Bennett and the lawyer in exemplary damages. The intermediate appellate court reduced exemplary damages to $512,109 each against Bennett and Bonham Corporation, explaining that the original ratio between actual and exemplary damages "likely exceed[ed] constitutional limits." On appeal, the court first held that there was sufficient evidence to support the mental anguish damages, including Grant's testimony showing that he suffered a high degree of mental pain and distress. It accordingly affirmed the compensatory damages portion of the award (Bennett did not challenge the attorney's fees award). Turning to the exemplary damages award, the court first agreed that it was not subject to the cap on punitive damages because the award was based felony criminal conduct. It held, however, that the exemplary damages award, even after the remitter by the intermediate court of appeals, was excessive and violated federal due process. The court held that, in determining the outer limits of an exemplary damages award, a court should consider the harm that would have occurred to Grant from Bennett's conduct. The intermediate appellate court had done so by determining that, if Bennett succeeded, and Grant was imprisoned, what was the value of that imprisonment. The court held that this was reversible error because the statute of limitations barred any claim against Grant, so that there was effectively no chance he would be imprisoned. As such, it held, Grant failed to show imprisonment was likely to result from Bennett's conduct, and the intermediate appellate court was wrong to consider imprisonment-related damages. It accordingly reversed the exemplary-damages portion of the judgment and remanded the case to the intermediate appellate court for remittitur in light of the opinion. Bennett v. Grant, Supreme Court, No. 15-0338, 4/28/17

15-0338
DON R. WILLETT, JUSTICE

Supreme Court of Texas

BP America v. Red Deer, 15-0569 (TexApp Dist 04/28/2017)

BP owned an oil and gas lease which lasted as long as oil, gas or other minerals is produced. Red Deer owned a "top lease" on the same property. On June 4, 2012, the last well on the property produced gas, but then went eight days without production. On June 12, 2012, BP turned off the well valve and sent notices to the lessors that it was invoking the shut-in royalty clause. Red Deer sued BP in August 2012 and asked the trial court to declare that BP's lease had terminated because, among other things, the well was incapable of producing in paying quantities on June 13, 2012, and the shut-in clause did not save it. The jury agreed and the trial court entered judgment in Red Deer's favor, finding that the lease had terminated. After the intermediate appellate court affirmed, BP appealed. The court reversed. It held that the shut-in royalty clause in the lease preserved the lease upon payment of a negotiated annual shut-in royalty within a year after the last gas was "sold or used" from a well capable of producing gas. The facts showed that gas was last sold or used on June 4. That meant that, to negate the clause, Red Deer needed to show that the well was either not capable of producing in paying quantities, or that no market existed for the gas, or both, as of June 4. The court held that Red Deer failed to carry this burden because it never asked the jury to determine if the well was capable of production in paying quantities as of that date. The court accordingly remanded the case with instructions to enter judgment in BP's favor. BP America Production Co. v. Red Deer Resources LLC, Supreme Court, No. 15-0569, 4/28/17

15-0569
PAUL W. GREEN, JUSTICE

United States Court of Appeals, Fifth Circuit

Equal Employment v. Bass Pro, 15-20078 (5th Cir. 04/28/2017)

In this case of first impression, appellee sought to bring a "pattern or practice" case under both §706 and §707 of Title VII of the Civil Rights Act asserting violation of the rights of 50,000 applicants, and the entitlement of each to individualized compensatory and punitive damages. The court, in a tie vote, denied en banc consideration. The court concluded the case could not be brought under the applicable statutes because the plain language and legislative history of the Civil Rights Act forbid §706 "pattern or practice" suits, and the panel's contrary holding rendered §707 a meaningless appendage to Title VII and hence superfluous. The court noted that the statute and its legislative history were powerful evidence that congress expected appellant to bring mass "pattern or practice" claims for equitable, not legal, relief. Second, allowing pattern-or-practice suits for individuals compensatory and punitive damages posed insurmountable manageability concerns which have previously been rejected by this court and the Supreme Court. Finally, the court held allowing pattern-or-practice suits for individualized compensatory and punitive damages for 50,000 persons necessarily ran afoul of the Seventh Amendment; the court had addressed such concerns before and held that such suits had prohibitive constitutional problems. As such, en banc consideration was denied. Equal Employment Opportunity Commission v. Bass Pro Outdoor World, L.L.C., Fifth Circuit, Case No.: 15-20078, 04/28/2017

15-20078

Court of Appeals of Texas, Second District

Legoland Discovery v. Superior Builders, 02-16-00425-CV (TexApp Dist 04/27/2017)

Appellant Legoland Discovery Centre hired Superior Builders to build a water feature at its facility. The contract included an arbitration clause. After several issues, including Superior's subcontractors filing liens against appellant due to Superior's failure to pay them, appellant terminated the contract. Superior sued appellant, then added subcontractors, touching off a round of cross-claims and counterclaims. Appellant settled with the subcontractors, and within days of settling moved to compel arbitration. The trial court denied the motion, finding that appellant had substantially invoked the judicial process to Superior's detriment. An appeal followed, with appellant arguing it had not substantially invoked the judicial process and that Superior failed to show it was prejudiced. The court first found that although waiver of arbitration can be implied through conduct, Superior had a high burden of proof because the law "strongly favors arbitration." The court applied a totality of the circumstances test and found that appellant did not waive arbitration through its conduct because appellant was the defendant; appellant sought only routine disclosures from Superior that would be useful in arbitration; little discovery had taken place; appellant did not ask for pre-trial, summary disposition of Superior's claims; and the counterclaims appellant filed were compulsory. The court noted that appellant's delay in seeking arbitration – 22 months – could weigh in favor of invoking the waiver, but in this case it didn't because most of that time was spent settling with the subcontractors, which Superior added to the suit and which could not be forced into arbitration. Because Superior could not show that appellant waived arbitration by substantially invoking the judicial process, the court did not reach the prejudice issue. The court reversed the trial court's judgment and remanded for an order compelling arbitration. Legoland Discovery v. Superior Builders, Fort Worth Court of Appeals, Case No. 02-16-00425-CV, 4/27/17.

02-16-00425-CV
LEE GABRIEL, JUSTICE

Court of Appeals of Texas, Twelfth

Dansby v. State Of Texas, 12-15-00269-CR (TexApp Dist 04/28/2017)

Police arrested appellant Dansby for public intoxication and DWI. Police encountered appellant while he was eating in a fast food restaurant with his car running outside. He had acknowledged drinking earlier in the evening and driving to the restaurant after a stop at home. The trial court convicted appellant and sentenced him to a suspended jail term and a fine. He appealed on 10 issues, arguing that police lacked probable cause for a warrantless arrest, that his breath test was involuntary, and that the evidence was insufficient to show that he was driving his car. The court found police had probable cause for a public intoxication arrest because they observed appellant drunk and reasonably believed he would drive his running car home in that state, thereby endangering others. The court found appellant's admission to drinking earlier in the evening and driving to the restaurant provided probable cause for the DWI arrest. These findings undercut appellant's involuntariness argument. He had argued that because the arrests were unlawful, police incorrectly told him he would lose his license if he did not submit to a breath test and thereby coerced his submission. Appellant had also argued that no evidence other than his admission of driving his car showed that he had been driving while drunk, but the court found that such an extrajudicial statement is sufficient under Emery v. State (881 S.W.2d 702). The court sided with appellant on his argument that police testimony that vehicle records showed appellant owned the running car were hearsay because the state did not present the records themselves into evidence. However, it found the error was harmless because independent evidence showed that appellant drove the car while drunk. The court affirmed the trial court's judgment. Ira Hudson Dansby v. The State of Texas, Tyler Court of Appeals, Case No. 12-15-00269-CR, 4/28/17.

12-15-00269-CR
JAMES T. WORTHEN, CHIEF JUSTICE

United States Court of Appeals, Fourth Circuit

Sanchez v. Stripes, 04-16-00129-CV (4th COA. 04/26/2017)

Appellant Gregory Sanchez slipped and fell on a wet floor exiting a restroom at a Stripes convenience store. He sued Stripes for his injuries. Video evidence showed him walking around a yellow warning sign as he entered the restroom, and the parties concurred that an employee mopped the area while appellant was in the restroom. Appellant testified the floor was dry when he entered. The court granted Stripes' motion for summary judgment, and an appeal followed, on grounds that appellant was not adequately warned of the danger. The court found that, even if appellant's claim that the floor was dry when he entered the bathroom was true, the evidence supported summary judgment. The court noted that appellant walked around the sign, which warned about a wet floor, and talked to the employee as she was mopping other areas. Applying a totality of the circumstances test, the court held that appellant was adequately warned about the ongoing dangerous condition of a wet floor. Although Stripes filed no-evidence and traditional summary judgment motions, and the trial court granted the motion without specifying the grounds, the appeals court addressed only the no-evidence motion because it was dispositive. The court affirmed the trial court's judgment. Sanchez v. Stripes, San Antonio Court of Appeals, Case No. 04-16-00129-CV, 4/26/17.

04-16-00129-CV
PATRICIA O. ALVAREZ, JUSTICE

Court of Appeals of Texas, Fifth

Kirkstall Road v. Jones, 05-16-00859-CV (TexApp Dist 04/27/2017)

Arking Jones sued the appellant, TV producer Kirkstall Road Enterprises, for negligence after Jones was shot four times. Appellant had featured him as "the witness," with an altered voice and blurred appearance, on a homicide investigation show called The First 48. Despite the attempts to conceal Jones' identity, he received death threats for serving as a witness. After Jones sued, appellant moved to dismiss under the Texas Citizens Participatory Act on ground that airing the show was an exercise of free-speech rights. The trial court denied the motion without stating its reasons, and an appeal followed. The court found that even if appellant could show Jones' claim was related to its free-spech rights, Jones qualified for the TCPA's bodily-injury exemption codified in Tex. Civ. Prac. & Rem. Code §27.010(c). The court rejected appellant's argument that this exemption was intended to give courts guidance on personal-injury claims unrelated to free-speech rights. The court found that Jones' claim fell within the plain language of the code, which provides that that the TCPA "does not apply to a legal action seeking recovery for bodily injury, wrongful death, or survival or to statements made regarding that legal action." The court denied Jones' request for damages on grounds that the appeal was frivolous, but affirmed the trial court's judgment. Kirkstall Road v. Jones, Dallas Court of Appeals, Case No. 05-16-00859-CV, 4/27/17.

05-16-00859-CV
DAVID J. SCHENCK, JUSTICE

Court of Appeals of Texas, Tenth

Ex Parte Billy, 10-16-00081-CR (TexApp Dist 04/26/2017)

The state indicted Billy Mack Maddison for felony online harassment under Texas Penal Code §33.07(a)(1). He had posted a Facebook profile purporting to be another person without her consent. At trial he argued the statute was unconstitutional because it violated free-speech protections, among other reasons. The trial court found §33.01(14) was a content-based restriction on speech and was vague and overbroad. The trial court thus dismissed the indictment, and an appeal followed. The court first found that the trial court did not have authority to declare §33.01(14) unconstitutional, because Maddison was indicted only under §33.07(a)(1). The court also found §33.07(a)(1), which prohibits creating a web page based on another person "without obtaining the other person's consent and with the intent to harm, defraud, intimidate, or threaten any person," was unambiguous. It found that the statute governs impersonation, which the court found to be conduct, not speech, and therefore analyzed the statute under intermediate scrutiny rather than strict scrutiny because it is content-neutral. The court found the statute served the substantial government interest of deterring crime and protecting individuals from identity theft, and that it was not overbroad in meeting these interests. The court also rejected Maddison's argument that the term "harm" in the statute is vague; the court found it is defined in the statute and has a plain meaning. The court thus reversed the trial court's dismissal order and remanded for further proceedings. Ex Parte Billy Mack Maddison, Waco Court of Appeals, Case No. 10-16-00081-CR, 4/26/17.

10-16-00081-CR
AL SCOGGINS, JUSTICE

Court of Appeals of Texas, Third District

Sunset Transportation v. Texas Department, 03-14-00385-CV (TexApp Dist 04/21/2017)

Federal law imposes requirements on interstate motor carriers, and preempts certain categories of state requirements relating to the intrastate operations of interstate motor carriers. Texas imposes registration, fee and financial-responsibility requirements on motor carriers as a prerequisite to operating intrastate within its borders. Two motor carriers sued Texas, alleging that certain Texas requirements (which they allegedly violated) were preempted by federal law. The district court rejected their challenges to the Texas statutory scheme. On appeal, the court held that a Texas rule requiring motor carriers to comply with Texas's minimum-insurance requirements with respect to their intrastate operations was not preempted by federal law. It similarly held that a Texas rule requiring motor carriers, following revocation of their intrastate operating authority for noncompliance with Texas's minimum-insurance requirements, to submit applications, insurance filings and related fees in order to regain their authority, was not preempted by federal law. It accordingly affirmed the district court's judgment. Sunset Transportation, Inc., et al. v. Texas Department of Transportation, Austin 3rd Court of Appeals, No. 03-14-00385-CV, 4/21/17

03-14-00385-CV
BOB PEMBERTON, JUSTICE

Court of Appeals of Texas, First District

Ex Parte Miguel, 01-16-00607-CR (TexApp Dist 04/18/2017)

A trial court in 2007 indicted appellant Miguel Arango, at age 16, of aggravated robbery with a deadly weapon. The case had been transferred from juvenile court due to the seriousness of the offense. Appellant in 2016, while still awaiting trial, challenged the jurisdiction of the trial court in a habeas corpus pleading, claiming the juvenile court did not make case-specific findings of the seriousness of his offense, as required under Moon v. State (451 S.W.3d 28). The trial court denied his plea and an appeal followed. The court found that although trial courts are not limited to the factors specified in Moon, they must state reasons, specific to each case, for transferring a case pursuant to Tex. Fam. Code §54.02(h). The court found that the juvenile court's findings regarding appellant's maturity and the danger he might pose to the public are "superfluous," and that the only case-specific reason it stated – that appellant committed a crime against another – is explicitly insufficient under Moon. The court rejected the state's argument that the appellate court cannot properly review the trial court's decision without a record of the transfer hearing. The appellate court found that the trial court is limited to reviewing the reasons stated in the juvenile court's transfer order. The court also rejected the state's argument that habeas corpus is not available before trial, because appellant would have that remedy available if he is convicted. The court found that a pre-trial habeas pleading is proper in several circumstances, including conserving judicial resources where, as here, an appellant is certain to win on appeal. The court reversed the trial court's judgment, rendered judgment granting the habeas writ, and remanded to the juvenile court for further proceedings, noting that the juvenile court can conduct a new transfer hearing. Ex Parte Miguel, Houston 1st Court of Appeals, Case No. 01-16-00607-CR, 4/18/17.

01-16-00607-CR
REBECA HUDDLE, JUSTICE

Court of Appeals of Texas, First District

Braughton v. State of Texas, 01-15-00393-CR (TexApp Dist 04/20/2017)

Appellant Christopher Ernest Braughton shot and killed Emmanual Dominguez after the latter got into an altercation with appellant's father. The altercation started with a road rage incident and ended when the two reached the street where they both live. Appellant came out of his house with a gun during the altercation. The Braughton family and two neighbors testified that Dominguez said something to appellant, but all waivered as to whether he said he had a gun. At that point appellant shot Dominguez, who died soon after. Two neighbors claimed Dominguez was reaching for the saddle bag of his motorcycle, but a third – a 13-year-old watching the incident from a second-story window with a dark shade on it – said Dominguez was backing away with his hands up. The jury convicted appellant of murder and sentenced him to 20 years. He appealed, arguing the evidence was insufficient to establish he had the mens rea for murder or to reject his self-defense and defense of others claims. On the mens rea/ issue, the court found that appellant intentionally shot the gun knowing it could cause serious harm. It also found that his arguments against mens rea, including that he feared for his father's life, were arguments for his defense of others issue. On that issue, the court held that because of the conflicting evidence, a reasonable jury could have rejected appellant's self-defense and defense of others claims. The court noted that witnesses were in disagreement as to what Dominguez said to appellant and whether Dominguez was reaching into his saddlebag or backing up. The court also noted that the gunshot wound – which entered Dominguez's armpit and went through his chest – could be consistent with someone bending and reaching or someone holding his hands up. Due to the conflicts in the evidence, a jury could conclude that Dominguez did not present a deadly threat at the time appellant fired his gun. The court thus overruled both of appellants' evidentiary issues. The court also rejected appellant's argument that the trial court erred by refusing to instruct the jury on the lesser included charge of deadly conduct, noting that the jury was instructed on manslaughter – a charge higher than deadly conduct but lesser than murder – and still saw fit to convict of murder. The court affirmed the trial court's judgment. Christopher Ernest Braughton v. The State of Texas, Houston 1st Court of Appeals, Case No. 01-15-00393-CR, 4/20/17.

01-15-00393-CR
HARVEY BROWN, JUSTICE

United States Court of Appeals, Fifth Circuit

State of Texas v. Kleinert, 15-51077 (5th Cir. 04/20/2017)

A Texas state district attorney sought to prosecute Kleinert, a federal task force officer, for unintentionally shooting an unarmed suspect as Kleinert tried to arrest him. Invoking his status as a federal officer, Kleinert removed the state prosecution to federal court and asked the district court to dismiss the indictment. He argued that he was immune from prosecution by the district attorney because he acted in his capacity as a federal officer and his conduct was otherwise lawful. After a three-day evidentiary hearing, the district court agreed with Kleinert and dismissed the indictment. The court affirmed the district court's judgment. It first held that the case was properly removed to federal court under the federal officer removal statute (28 U.S.C. §1442(a)(1)) because Kleinert was a federal officer at the time of the event giving rise to the suit, the suit arose of out events conducted as a federal officer, and Kleinert possessed a "colorable" federal defense. The court further held that the district court correctly dismissed the indictment because, under the Supremacy Clause, a state cannot punish: (1) a federal officer; (2) authorized by federal law to perform an act; (3) who, in performing the authorized act, did no more than what the officer subjectively believed was necessary and proper; and (4) that belief was objectively reasonable under the circumstances. It held that district court did not err in finding, after an evidentiary hearing, that each of the four elements was satisfied. State v. Kleinert, 5th U.S. Circuit Court of Appeals, No. 15-51077, 4/20/17

15-51077
STEPHEN A. HIGGINSON, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

Securities Exchange Commission v. Life Partners, 14-51353 (5th Cir. 04/21/2017)

Appellee filed the underlying enforcement action against appellant, a business established to facilitate the sales of existing life insurance policies to investors, and two of its senior officers alleging violations of reporting and anti-fraud provisions of the federal securities law. Appellee further alleged appellant knowingly underestimated life expectancies for the insured in public filings with the SEC. A jury found appellants liable for violations of §17(a) of the Securities Act and §13a of the Securities Exchange Act; the district court sustained the jury's verdict as to §13(a) but set aside the verdict as to §17(a). In its final judgment, the district court imposed civil penalties on the appellants and issued injunctions restraining them from committing additional violations of the relevant securities law. However, the district court declined to order reimbursement for compensation. On appeal, the court affirmed holding the evidence was sufficient to support expert testimony that appellants misused actuaries when evaluating mortality experience associated with life settlements. The court further noted there was no abuse of discretion in the district court's determination that such opinion was relevant. As there was more than a scintilla of evidence in the record that appellants knew that its life-settlement LEs were materially short, the court affirmed the judgment and imposition of second-tier penalties of the district court. However, the court reversed the district court's grant of judgment as a matter of law as to §17(a) given there was no basis to set aside the jury's verdict. Securities Exchange Commission v. Life Partners Holdings, Inc., Fifth Circuit, Case No.: 14-51353, 04/21/2017

14-51353
JAMES L. DENNIS, CIRCUIT JUDGE

Court of Appeals of Texas, Eighth District

Johnson v. Harris, 08-15-00149-CV (TexApp Dist 04/19/2017)

Appellant Tanyee Monique Johnson sued Dr. Scott Harris and Dr. Peter Raphael for medical malpractice. Dr. Harris performed a rare form of breast reduction surgery known as a "free nipple graft," and both doctors saw her in the days afterward, when she developed complications that eventually forced her to undergo a bilateral mastectomy. After appellant's expert, Dr. Herbert Stern, gave his deposition, both defendant doctors challenged his qualifications, although Dr. Rapheal did so in a motion for summary judgment and Dr. Harris did so in a motion to dismiss. At a pre-trial hearing, the trial court struck Dr. Stern's deposition and dismissed the case. An appeal followed on three issues. In two issues, appellant argued the trial court erred by striking Dr. Stern's deposition. On the first of these issues, the court found that although the rules for qualifying an expert have some flexibility, there are additional criteria when an expert testifies as to the standard of care, as Dr. Stern did. The court found that Dr. Stern last performed a free-nipple graft surgery four years before appellant's surgery and seven years before his deposition was taken. The court also found that appellant offered no evidence that Dr. Stern's experience was still relevant. Thus, she failed to show he was "qualified on the basis on training and experience" to testify as to a standard of care, as required by Tex. Civ. Prac. & Rem. Code §74.401, and the court overruled one of her issues. The court found that Dr. Stern was qualified to testify as to the defendant doctors' post-operative care, where the criteria for an expert are more relaxed, but that any error in omitting his testimony was harmless because Dr. Stern did not criticize Dr. Harris' post-operative care. Thus, the court overruled this issue as well. In her other issue, appellant challenged the trial court's authority to dismiss the case against Dr. Harris because he did not file a motion for summary judgment. The court found a trial court generally does not have authority to dismiss in such circumstances, but appellant did not properly preserve error. The court affirmed the trial court's judgment. Johnson v. Harris, El Paso Court of Appeals, Case No. 08-15-00149-CV, 4/19/17.

08-15-00149-CV
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

Court of Appeals of Texas, Fifth

Smith v. City of Garland, 05-16-00474-CV (TexApp Dist 04/20/2017)

The City of Garland fired three firefighters after discovering they cheated on a test for promotions. The city sued several firefighters, including appellant Randy Smith, seeking declaratory relief that the city could fill the vacancies with a new round of testing. After the firefighters countersued claiming they were deprived of rightful promotions, the city settled by promoting seven of them. Appellant, who was not on the eligibility list when the positions opened up, intervened, arguing the city acted outside the bounds of the Local Government Code by promoting the seven firefighters. The trial court enforced the city's settlement and struck appellant's intervention, at which point he appealed. The court rejected appellant's argument that he had a judiciable interest in the outcome of the case because he was not on the eligibility list for promotions when the position opened up. Although appellant was on the list at the time of the trial court's judgment, the appellate court found that the date the position opened up was the operative date under Tex. Local Gov't Code §143. The court also found appellant failed to demonstrate that he would have gotten a promotion even if he had been on the list, noting low test scores in the past. The court also rejected appellant's argument that the trial court lacked subject matter jurisdiction. The court affirmed the trial court's judgment. Smith v. City of Garland, Dallas Court of Appeals, Case No. 05-16-00474-CV, 4/20/17.

05-16-00474-CV
JASON E. BOATRIGHT, JUSTICE

Court of Appeals of Texas, Fourteenth

Kuether v. State of Texas, 14-15-00357-CR (TexApp Dist 04/18/2017)

Police responded to a car crash and found appellant Erik Kuether hiding in the woods. They determined he was the driver of a truck that hit another car, handcuffed him, led him out of the woods, and put him in the back of a squad car. Upon questioning, they determined he was intoxicated, and they brought him to the Intox Center, where they first read him his Miranda rights and then confirmed he was intoxicated. The trial court convicted appellant of driving while intoxicated and sentenced him to one year of community supervision. On appeal, he argued the court erred by admitting statements he made before he received his Miranda warnings, and that the state withheld potentially exculpatory evidence. The court acknowledged that a person is "in custody" when "a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest" under Dowthitt v. State (931 S.W.2d 244), but also noted that both detention and arrest involve some restrictions on movement. The court also found that it is standard practice to handcuff suspects while detaining them for questioning, and that using handcuffs does not indicate arrest. Thus, the court held appellant was not in custody during questioning while handcuffed in the back of a police car, and the trial court did not err by allowing police testimony regarding the questioning. The court also found appellant failed to properly preserve error on his parallel rights under Tex. Code Crim. Proc. Art. 38.22, because his counsel's objection at trial invoked only his Miranda rights, not his Art. 38.22 rights. The exculpatory evidence issue involved a witness who told the state before trial that he no longer wished to testify, and the state did not inform him of the change until after trial began. The court found the witness' testimony was consistent with other evidence the state presented and that appellant failed to show how an earlier disclosure would have changed the outcome of the case. The court affirmed the trial court's judgment. Erik Kuether v. The State of Texas, Houston 14th Court of Appeals, Case No. 14-15-00357-CR, 4/18/17.

14-15-00357-CR
MARTHA HILL JAMISON, JUSTICE

Court of Appeals of Texas, Fourteenth

MHI Partnership v. City of League City, 14-15-00457-CV (TexApp Dist 04/18/2017)

Appellants MHI Partners and Mag Creek Partners sought a refund from City of League City for special assessments it paid on properties a development. The assessments were levied to reimburse the developer for improvements. Appellants had been early purchasers of properties, and later resold them, so that both appellants and the subsequent buyers paid a share of the assessments. The City, meanwhile, discovered in 2013 that it had an overage after collecting the assessments since 2002. Finding that 259 properties had disputed claims, the city filed an interpleader, naming appellants among the 515 defendants. Appellants asked the court for a pro rata split of the refund, but the court ruled that the entire refund should go to the current owners. An appeal followed, challenging several findings of fact and the conclusion of law that granted the refund to the current owners. The trial court had made findings of fact that appellants had already been repaid their assessment share, that they passed along costs to the buyers, and they passed along a warranty deed to the buyers, among several others. The court found the record showed no evidence for any of the fact findings. On the conclusion of law, the court found that the city's refund ordinance directed that the excess money "will be administered and refunded to parties having an interest in such funds." The court also held that the trial court's decision to give all money to the current owners was untenable under the plain language of the ordinance. "Paying money from the excess-assessment fund to a property owner who did not make any special- assessment payments is not a 'refund.' … It is a windfall," the court said. The court reversed the trial court's judgment and remanded. MHI Partnership v. City of League City, Houston 14th Court of Appeals, Case No. 14-15-00457-CV, 4/18/17.

14-15-00457-CV
KEM THOMPSON FROST, CHIEF JUSTICE

United States Court of Appeals, Fifth Circuit

Decatur Hospital v. Aetna Health, 16-10313 (5th Cir. 04/18/2017)

On May 27, 2015, appellee remitted a demand letter to appellant addressing violations of the timely claim processing requirements imposed by the Texas Prompt Pay Act. Appellee claimed state-law late-payment penalties were in excess of $17.4 million. Two days after appellee submitted a claims list, it filed the underlying lawsuit in Texas state court predicated upon insurance claims it alleged appellant paid, but paid too slowly. Appellee subsequently moved to remand and requested attorneys' fees; the district court granted remand holding "the action should be remanded because [appellant] did not timely remove it;" and awarded attorneys' fees. Initially, the court determined it maintained appellate review over the remand order because appellant relied upon the federal officer removal statute in its notice of removal. The court further affirmed remand concluding appellant's notice of removal was untimely. The court found appellant's argument that it could not file for removal until receipt of appellee's interrogatory answers was misplaced; the court noted no new information in the interrogatory response at issue was relevant to prohibit timely removal. Because appellant failed to timely remove in accordance with the requisite 30-day time period, the district court properly remanded the matter and awarded attorneys' fees. Decatur Hospital Authority v. Aetna Health, Inc., Fifth Circuit, Case No.: 16-10313, 04/18/2017

16-10313
JAMES E. GRAVES, JR., CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

USA v. Jones, 16-10463 (5th Cir. 04/20/2017)

Jones was indicted on one count of carjacking in violation of 18 U.S.C. § 2119 and one count of using, carrying, or brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1). Jones filed motions to dismiss the indictments, arguing that the vehicle he carjacked was removed from interstate commerce and therefore beyond the jurisdiction of federal law enforcement, and that the carjacking statute was not a predicate "crime of violence" that could support a conviction under § 924(c). After the district court denied both motions, Jones pled guilty to both counts, while preserving his right to challenge the district court's denial of his two motions to dismiss. On appeal, Jones again argued that the carjacking statute was unconstitutional as applied to him. Although he acknowledged that the vehicle had been manufactured outside Texas, Jones argued that, because the vehicle had not left Texas for at least five years, the stolen vehicle did not have a sufficient nexus to interstate commerce. The court disagreed. It held that, because the vehicle that Jones stole was transported in interstate commerce, his as-applied constitutional challenge to § 2119 failed. With respect to Jones' second argument that the federal carjacking statute was not a predicate "crime of violence" that could support a conviction under § 924(c), the court held that prior circuit precedent foreclosed this argument. It accordingly held that the district court did not err in denying Jones' motions to dismiss, and affirmed its judgment. United States v. Jones, 5th U.S. Circuit Court of Appeals, No. 16-10463, 4/20/17

16-10463
JENNIFER WALKER ELROD, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

Burdett v. Remington Arms, 16-11216 (5th Cir. 04/19/2017)

Appellant was injured while hunting in Texas when his rifle suddenly discharged, firing a bullet through his foot. He sued, alleging five products liability claims and one claim under the Texas Deceptive Trade Practices-Consumer Protection Act. Appellee moved for summary judgment asserting the claims were time-barred by the Texas statute of repose which provided that a claimant must commence a products liability action against a manufacturer or seller of a product before the end of 15 years after the date of the sale of the product by the defendant. Although the parties have been unable to provide the date the rifle was first sold, appellant acknowledged he purchased the rifle no later than 1998. Appellant argued that New York, rather than Texas, law applied and thus his claims were not time barred. The district court granted summary judgment holding Tex. Civ. Prac. & Rem. Code §71.031 was a codified choice of law provision warranting application of Texas law and Texas's 15-year statute of repose. On appeal, the court affirmed holding both it and the Supreme Court have concluded that §71.031 was a codified choice of law provision and applicable in federal court. Accordingly, appellant's claims were time barred, and by his own admission, there was no genuine issue of material fact. Therefore, the court affirmed the district court's entry of summary judgment. Burdett v. Remington Arms Co., L.L.C., Fifth Circuit, Case No.: 16-11216, 04/19/2017

16-11216
JUNELL, DISTRICT JUDGE

Court of Appeals of Texas, Sixth Appellate District

University of Texas v. Nawab, 06-16-00083-CV (TexApp Dist 04/21/2017)

During his first year of residency, Texas Health warned Nawab of certain deficiencies in his performance that might lead to his dismissal from the program. After the conclusion of the first year, Texas Health did not renew Nawab's contract. He then brought suit, asserting claims for retaliation, hostile work environment, and discrimination based on his race, religion, and national origin and for intentional infliction of emotional distress. Texas Health filed a plea to the jurisdiction, which the trial court granted in part, dismissing Nawab's claims for religious discrimination, intentional infliction of emotional distress, and punitive damages, but denying the motion as to the remaining claims. Texas Health filed an interlocutory appeal. The court held that, because Texas Health presented evidence that Nawab was not qualified to advance to a second-year residency, and there was no opposing evidence, the trial court erred by not dismissing Nawab's claims based on race and national origin discrimination. The court also held that, because Nawab did not establish a prima facie case of race- or nationality-based hostile work environment or retaliation, the trial court erred in not granting Texas Health's motion to dismiss these claims. It accordingly reversed the judgment of the trial court and rendered judgment dismissing Nawab's suit. University of Texas Health Science Center at Tyler v. Nawab, Texarkana Sixth Court of Appeals, No. 06-16-00083-CV, 4/21/17

06-16-00083-CV
RALPH K. BURGESS JUSTICE

United States Court of Appeals, Fifth Circuit

Alexander v. City of Round Rock, 16-50839 (5th Cir. 04/18/2017)

Appellant was observed in a hotel parking lot engaging in alleged suspicious activity. After refusing to answer officer's questions, appellant was forcibly removed from his car, handcuffed, and ultimately arrested for resisting a search. Appellant sued the appellees under 42 U.S.C. §1983, alleging violations of his First, Fourth, Fifth, and Fourteenth Amendment rights. Appellees moved for, and was granted dismissal on all claims under qualified immunity and failure of appellant to allege any violations of his constitutional rights. On appeal, the court reversed in part holding the district court erroneously failed to draw all inferences in favor of the appellant. The court noted there was nothing in the complaint detailing the alleged suspicious activity or any basis to conclude that appellant appeared to flee. Taking all of appellant's well-pled allegations as true and drawing all inferences in his favor the court could not conclude as a matter of law that he failed to state a Fourth Amendment claim for unlawful detention. Further, the court found that the allegations in the complaint did not support a finding that appellant had used force against appellees such that they could arrest him for resisting a search. Because appellees did not have probable cause to arrest appellant for resisting a search, and because no objectively reasonable officer would conclude that such probable cause did exist, the court reversed holding appellant stated a Fourth Amendment claim and appellees were not entitled to qualified immunity. However, the court affirmed qualified immunity for appellant's First Amendment retaliation claim as appellant failed to provide facts supporting his use of an expletive caused such retaliation. Lionel Alexander v. City of Round Rock, Fifth Circuit, Case No.: 16-50839, 04/18/2017

16-50839
EDITH BROWN CLEMENT, CIRCUIT JUDGE

Court of Appeals of Texas, First District

State of Texas v. Brazoria County, 01-16-00334-CV (TexApp Dist 04/20/2017)

Brazoria County petitioned for an enforcement action against several defendants for various violations involving sewage disposal. The county named the Texas Commission on Environmental Quality as a necessary party. The county and the defendants signed and submitted a series of agreed judgments, and the state objected, claiming it was not given a chance to negotiate or approve the settlement. The trial court approved the judgments over the state's objections, and it overruled the state's motion for a new trial. The state appealed on grounds that the trial court erred by approving the judgments over its objection, and that the judgment does not comply with the Water Code. The court found that the agreed judgments referred to the TCEQ as a necessary party and contained a line for a state attorney to sign, which was blank. The court also found that a trial court "cannot render a valid agreed judgment absent consent of the parties at the time the judgment is rendered" under Chisholm v. Chisholm (209 S.W.3d 96). The court rejected several county arguments, generally because the final judgment stated that it was based on the agreed judgment. Having sustained the state's first issue, the court did not reach the second. The court reversed the trial court's judgment and remanded. State of Texas v. Brazoria County, Houston 1st Court of Appeals, Case No. 01-16-00334-CV, 4/20/17.

01-16-00334-CV
EVELYN V. KEYES, JUSTICE

Court of Appeals of Texas, Eleventh

Atnipp v. State of Texas, 11-14-00287-CR (TexApp Dist 04/20/2017)

Appellant Stanley Lucius Atnipp admitted to shooting and killing a boxer dog. He had gone outside to walk his Chihuahua when three dogs that had gotten loose moved toward him. A neighbor, Lori Winter, testified she was trying to round up the dogs to bring them back to their homes at the time. Her testimony and appellant's differed on some points, but both claimed appellant took his dog inside his house, came out with a gun, and fired at least one round that killed that boxer. The trial court convicted him and sentenced him to four years of community supervision, and an appeal followed. Among his 17 issues, appellant argued he qualified for an exception to the penal code that allows shooting animals for depredation control. He argued he shot the dog to protect his personal property, namely his Chihuahua, and that the state's evidence was insufficient to show he was not engaged in depredation control. The court found that both appellant and Winter testified that appellant put his dog safely back inside his house before coming back outside and shooting the boxer. Thus, the court held that a reasonable jury could find that appellant was not protecting his dog and therefore could not qualify for the exception. On several other issues, the court held the trial court did not err by refusing appellant's requests for jury instructions related to the exception because they were not necessary in light of the holding that appellant did not qualify for the exception. The court also overruled several evidentiary issues, and affirmed the trial court's judgment. Stanley Lucius Atnipp v. The State of Texas, Eastland Court of Appeals, Case No. 11-14-00287-CR, 4/20/17.

11-14-00287-CR
MIKE WILLSON JUSTICE

Court of Appeals of Texas, Third District

Llorens v. State of Texas, 03-16-00257-CR (TexApp Dist 04/21/2017)

After her divorce, appellant Dara Marie Llorens moved to Mexico with her child. Authorities discovered her there 12 years later. She plead guilty to kidnapping and interference with custody. The court sentenced appellant to six years for kidnapping and two for interference, and an appeal followed on double jeopardy and other grounds. Appellant argued the sentences violated double jeopardy because she was punished twice for the same underlying conduct. The court found that appellant plead guilty to indictments that alleged crimes 12 years apart: a kidnapping in 2002 and interference in 2014. The court also found that the two crimes do not share all the same elements. Kidnapping includes the element of restraining another person's movements; interference does not and is age-limited to victims under 18. Appellant argued her two crimes involved the same victim and therefore shared a common gravamen, one of eight factors the Court of Criminal Appeals identified as signs of double jeopardy. The court found the gravamen of kidnapping is abduction, whereas the gravamen of interference is the violation of a court order. Furthermore, kidnapping includes a lack of consent whereas interference can happen with the full consent of the child. The court also found that at most, only two of the eight factors weighed in appellant's favor. Thus, it overruled her double jeopardy issue. The other grounds involved court costs, with appellant arguing there was no basis for certain costs. The court modified the judgment to remove some court costs and affirmed the modified judgment. Dana Marie Llorens v. The State of Texas, Austin Court of Appeals, Case No. 03-16-00257-CR, 4/21/17.

03-16-00257-CR
DAVID PURYEAR, JUSTICE

United States Court of Appeals, Fifth Circuit

Lincoln v. Barnes, 16-10327 (5th Cir. 04/20/2017)

This case arose out of the unfortunate police shooting of decedent during a SWAT team operation at his mother's residence. When decedent opened the door, three officers opened fire, killing him and narrowly missing appellee, who was standing by his side. Appellee fell to the ground next to her father's body; she was then forcibly removed, placed in handcuffs, put in the backseat of a police vehicle, and transported to the police station for interrogation. Appellees, individually and as representative of decedent's estate, filed suit against the city and several officers asserting a variety of constitutional claims under 42 U.S.C. §1983 stemming from the shooting and appellee's subsequent detention. All defendants moved for dismissal with the officers asserting qualified immunity. The district court dismissed all claims except the unreasonable seizure claim against appellant-officers finding the involuntary detention and interrogation of appellee was without probable cause. On appeal, the court affirmed holding appellants violated appellee's Fourth Amendment rights as there was not a demonstrative probable cause or appellee's consent to be seized, transported, and subjected to prolonged interrogation. The court noted that no exigent circumstances existed for the detention and, in fact, appellee was not even being questioned about the unsolved crime which triggered the SWAT team's involvement. As there was no probable cause or special circumstances warranting appellee's detention, the court affirmed the district court's judgment of maintaining appellee's unreasonable seizure claim. Erin Lincoln v. C. Barnes, Fifth Circuit, Case No.: 16-10327, 04/20/2017

16-10327
JAMES E. GRAVES, JR., CIRCUIT JUDGE

Court of Appeals of Texas, First District

Davis v. The State of Texas, 01-16-00079-CR (TexApp Dist 04/06/2017)

Appellant Frederick Anthony Davis plead guilty to aggravated assault and "true" to an enhancement paragraph. The court sentenced him to 17 years, and he appealed with three claims. Appellant first claimed the Harris County trial court lacked jurisdiction because he was indicted in a different district in Harris County. The district of indictment, the 178th, transferred the case to the 184th because it was a "refile" of a charge originally filed in the 184th. The court first found that a defendant may challenge jurisdiction for the first time on appeal under Cook v. State (902 S.W.2d 471), rejecting the state's argument that the challenge was improper. However, the court also found that both the Texas Constitution (in Art. V, §11) and Tex. Gov't Code 24 allow district courts within a county to transfer cases among themselves. The court overruled this claim. Next, appellant argued that the court improperly used a juvenile adjudication to enhance his sentence, pushing it from a range of 2 to 10 years to a range of 2 to 20 years. The court found that the delinquency adjudication based on a felony offense counts as a felony conviction for enhancement purposes. Furthermore, he plead "true" to the enhancement based on that adjudication, which charged the felony offense of burglary of a habitation. The court overruled this claim as well. In appellant's last claim, the court rejected his argument that the $40 clerk's fee he was charged is unconstitutional. The court affirmed the trial court's judgment. Frederick Anthony Davis v. The State of Texas, Houston 1st Court of Appeals, Case No. 01-16-00079-CR, 4/6/17.

01-16-00079-CR
JANE BLAND, JUSTICE

United States Court of Appeals, Fifth Circuit

Neiman v. Bulmahn, 15-31094 (5th Cir. 04/21/2017)

This securities class action concerned non-party ATP Oil & Gas Corp.'s collapse into bankruptcy. Appellants were shareholders of ATP, a company engaged in the acquisition, development, and production of oil and gas properties. Appellants alleged that appellees, each of whom was an officer or director of ATP, misrepresented production and liquidity of the company as well as the true reason behind its CEO resigning. The district court dismissed the complaint with prejudice. On appeal, the court affirmed dismissal holding appellant's scienter allegations fell short for three reasons: (1) failure to adequately plead appellee had motive to mislead the public; (2) failure to show appellee was made aware, or was severely reckless in not being aware, of lower production levels; and (3) appellee's position in the company did not aid appellant's scienter allegations. In short, viewing appellant's allegations as a whole, the court agreed with the district court that appellants failed adequately to allege scienter. For similar reasons, the court affirmed dismissal of appellant's scienter allegations as it related to ATP's liquidity. Finally, the court affirmed dismissal noting appellant's lacked allegations that appellees knew or were reckless in not knowing the "true" reasons for the CEO's resignation. Accordingly, dismissal of the complaint was affirmed. Neiman v. Bulmahn, Fifth Circuit, Case No.: 15-31094, 04/21/2017

15-31094
STEPHEN A. HIGGINSON, CIRCUIT JUDGE

Court of Appeals of Texas, Fourteenth

Williams v. State of Texas, 14-16-00292-CR (TexApp Dist 04/13/2017)

A jury found Williams guilty of DWI. He appealed, arguing that the evidence was insufficient to support his conviction. The court disagreed, concluding that the cumulative evidence – including evidence showing that Williams hit two parked cars, refused to cooperate with multiple police officers, offered a bribe to a police officer, exhibited glassy eyes and dilated pupils, and had elevated blood-test results – supported the jury's finding that Williams was driving while intoxicated. Williams also challenged the trial court's refusal to suppress the results of a field sobriety test, in which he displayed six out of six clues of intoxication. Williams argued that the police officer did not properly administer the test because he did not inquire if Williams had any recent head injuries or whether he was wearing glasses, as required by the test's field manual to determine if the driver is an appropriate candidate for the test. The court rejected this argument, concluding that the trial court did not err in accepting the police officer's explanation that Williams was a proper candidate, based upon other factors and his experience. The court accordingly affirmed the trial court's judgment. Williams v. State, Fourteenth Court of Appeals, No. 14-16-00292-CR, 4/13/17

14-16-00292-CR
KEVIN JEWELL, JUSTICE

Court of Appeals of Texas, Second District

Ellis v. State of Texas, 02-16-00144-CR (TexApp Dist 04/20/2017)

Appellant Braylon Dominque Ellis admitted to killing Tommy Brown while robbing him. Appellant acted with the help of his girlfriend Christina Rodriguez, who had struck up a pen pal relationship with Brown while she was in prison. The two sent text messages from Brown's phone to Brown's sister and co-worker after police had found Brown's body. When police found appellant and his co-conspirator outside Atlanta, appellant gave police a rambling, self-contradictory confession. At trial, appellant admitted to beating Brown to death but claimed he did not intend to kill him. The trial court convicted him of felony murder with a life sentence, and an appeal followed on three issues. In the first issue, appellant challenged admission of his confession, claiming he did not clearly and unequivocally waive his rights. The court found that police read appellant his rights, asked appellant to read the section of the waiver form where he agrees to a police interview, and that appellant signed the form. It rejected appellant's argument that he did not waive his rights because police did not verbally ask him if he waived his rights, finding there was no requirement for police to ask instead of or in addition to obtaining a signature on the waiver form. In his next two issues, appellant challenge the trial court's admission of the text messages, arguing they were hearsay and violated the best evidence rule. The state entered a transcription of the text messages that police had prepared, rather than a printout downloaded straight from the phone, because it was a "throwaway" phone from which police could not download data. The court found the text messages were not hearsay because they were not offered for the truth of the matter asserted – they were used to show appellant had possession of the phone after the victim was dead. On the best evidence issue, the court found that when a printout is not available, Tex. R. Evid. 1004(b) allows for other means to verify the accuracy of the information. Here, a police officer testified that he transcribed the text and that another officer reviewed the transcript for accuracy. The court thus overruled all of appellant's issues and affirmed the trial court's judgment. Braylon Dominique Ellis v. The State of Texas, Fort Worth Court of Appeals, Case No. 02-16-00144-CR, 4/20/17.

02-16-00144-CR
BONNIE SUDDERTH, JUSTICE

United States Court of Appeals, Fifth Circuit

USA v. Nguyen, 16-10186 (5th Cir. 04/13/2017)

Nguyen was charged with aiding and assisting in the preparation of a false and fraudulent corporate tax return. He pleaded guilty pursuant to a written plea agreement and entered into a settlement agreement with the Government, in which he agreed to forfeit $1.1 million in seized funds. In preparing the presentence report, the probation officer noted that IRS agents found over $4.9 million in structured deposits made by third parties to bank accounts registered to Nguyen or his family members and that, during a raid of Nguyen's business, IRS investigators found over $3.2 million in currency— most of it separated into $10,000 bundles—whose source could not be determined. The probation officer suggested the structuring activities could warrant an upward departure for an underrepresented criminal history or uncharged conduct. The Government, while agreeing there was enough evidence to show that the funds were structured, expressed doubt that there was sufficient proof by a preponderance of the evidence to show that Nguyen himself assisted in the structuring. After an evidentiary hearing, the district court disagreed with the Government's position. It held that, based upon its review of the evidence, it believed that Nguyen was engaged in structuring activities. Nguyen appealed, arguing that the district court's determination that he participated in financial structuring activities was not supported by sufficient evidence and thus could not form the basis for an upward variance. The court disagreed. It found that it was likely Nguyen was aware of the restrictions against structuring, that he intentionally and knowingly participated in illegal currency-structuring activities, and that the purpose of the structured transaction was to evade reporting obligations. It further held that the enhanced sentence, when considering the record as a whole, was not an abuse of discretion. United States v. Nguyen, 5th U.S. Circuit Court of Appeals, No. 16-10186, 4/13/17

16-10186
CARL E. STEWART, CIRCUIT JUDGE

Court of Appeals of Texas, First District

Caleb v. Carranza, 01-15-00285-CV (TexApp Dist 03/30/2017)

Former employees of a school district sued the former superintendent wherein the former employees sought injunctive and declaratory relief regarding a recommendation to terminate their employment. The case was dismissed because the pleadings did not raise any real constitutional right. Caleb, the principal of a middle school, was asked to serve asked to serve as a transitional principle and was then replaced after a new superintendent was chosen for the school and moved to another school. Then Grier hired investigators to look into the inflation of test scores of students at the middle schools. After Caleb stirring up media attention from the investigations, the superintendent fired Caleb. Caleb then asserted that he was improperly fired based on a report without a hearing to refute the charges against him. The court found that the complaint had no facts which supported the claims brought by Caleb for violation of equal protection because there was nothing in the complaint that showed he was treated differently than other employees. The former employees did not state a cause of action based on the right to free speech because all statements made were made in the course of employment. Lastly, the former employees failed to state a claim for a due process violation because they were given hearings and some obtained positive results. Therefore, the dismissal of the complaint was affirmed. Caleb v. Carranza, Superintendent, Case No. 01-15-00285, 3/30/17

01-15-00285-CV
MICHAEL MASSENGALE, JUSTICE

Court of Appeals of Texas, Eighth District

Jaquez v. The State of Texas, 08-15-00274-CR (TexApp Dist 03/22/2017)

Rocio Garay accused appellant Donovan Vidal Jaquez of striking her in the face during an argument in her parked car. Appellant was Garay's boyfriend at the time of the 2010 incident, although they had ended their on-again off-again relationship by the time he was arrested in 2014. Although Garay reported the incident to police the same night it happened, the jury heard conflicting testimony about the circumstances around the incident and whether appellant was in Garay's car that night. Appellant also sought to offer evidence that Garay had thrown a beer bottle at his new girlfriend in 2014, and that Garay had filed Child Protective Service complaints and protective orders against appellant in retaliation for his 2013 petition to decrease child support. The jury convicted appellant and sentenced him to probation and a fine. He appealed, arguing the trail court erred by failing to introduce his evidence. The court first waived any Confrontation Clause complaints because they were not properly preserved. Next, the court found that appellant failed to show the CPS complaints and protective orders were false, and thus the court did not err by failing to admit them to impeach Garay. On his next issue, the court found that appellant did not lay the proper foundation to introduce the alleged beer-bottle incident. Under Tex. R. Evid. 608, a witness' character for truthfulness may be attacked only through reputation or opinion testimony. Specific instances of conduct are allowed, under Rule 613, only to show bias, interest, or motive for testifying, and only after a witness has denied bias, interest, or motive. Furthermore, the court found that an assault in 2014 could not have provided motive for Garay to lie to the police in 2010. The court held the trial court did not err in excluding the evidence and affirmed its judgment. Donovan Vidal Jaquez v. The State of Texas, El Paso Court of Appeals, Case No. 08-15-00274-CR, 3/22/17.

08-15-00293-CV
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

United States Court of Appeals, Fifth Circuit

Cabral v. Brennan, 16-50661 (5th Cir. 04/10/2017)

Appellant, a Mexican-American letter carrier in his mid-40s, complained repeatedly of discrimination, harassment, and retaliation at the hands of his supervisors. Appellant filed suit alleging civil rights and age discrimination violations claiming appellee created a hostile work environment, harassed him, retaliated against him, and discriminated against him on the basis of his race, national origin, and age. Appellee contended appellant was a difficult employee, struck one of his supervisors with a postal vehicle, and engaged in various acts of insubordination. The district court granted summary judgment for appellee on all remaining claims except retaliation for unpaid leave; the district court subsequently granted dismissal of the remaining claim following reconsideration. On appeal, appellant argued that the district court erred by analyzing appellee's reconsideration under Fed. R. Civ. P. 59(e) rather than Rule 54(b) and for concluding appellant failed to state a claim. The parties agreed that the district court should have analyzed the motion for reconsideration under Rule 54(b) which allowed a court to revise interlocutory orders; however, such procedural error was harmless. Further, the court held appellant's two-day suspension did not exact a physical, emotion, or economic toll as required to support a claim for retaliation. Because the district court's procedural error was harmless, and appellant's two-day suspension did not constitute a materially adverse action, the court affirmed. Cabral v. Brennan, Fifth Circuit, Case No.: 16-50661, 04/10/2017

16-50661
JERRY E. SMITH, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

USA v. Sanjar, 15-20025 (5th Cir. 04/13/2017)

The defendants were convicted for their participation in a Medicare fraud scheme. Because the defendants were required to forfeit the results of their ill-gotten gains, the district court held that their restitution obligation could be offset with any amount collected pursuant to the forfeiture order. It reasoned that there was no private victim, meaning the government would receive both the restitution amount and any forfeited proceeds. The government appealed the restitution/forfeiture orders, and the defendants challenged their convictions. The court held that the district court erred in its restitution/forfeiture orders. Citing decisions from the First, Fourth, Seventh and Ninth Circuits, it held that a district court is without statutory authority to offset restitution with amounts forfeited to the government. It accordingly modified the restitution and forfeiture orders to eliminate the offset. It also rejected the defendants' many arguments against the jury verdict and affirmed the judgment. United States v. Sanjar, et al., 5th U.S. Circuit Court of Appeals, No. 15-20025, 4/13/17

15-20025
GREGG COSTA, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

Alviar v. Lillard, 16-11501 (5th Cir. 04/14/2017)

Appellant was diagnosed with Post Traumatic Stress Disorder after serving in the United States Army. Appellant alleged appellee, his former supervisor, subjected him to discrimination when he expressed hostility to appellant's PTSD and made inappropriate statements regarding appellant's condition. Following his termination, appellant sued his employer, Macy's, and appellee in Texas state court, claiming that Macy's discriminated against him based on his disability in violation of the Texas Labor Code. Additionally, appellant claimed that appellee tortuously interfered with his employment contract. Macy's removed the suit to federal court based on diversity jurisdiction; appellant moved to remand arguing that because appellee – acting in his own interest – tortuously interfered with his employment contract, appellee was properly joined, the parties were not completely diverse, and the district court lacked jurisdiction. Appellee subsequently moved to dismiss under Fed. R. Civ. P. 12(b)(6). The district court denied remand and granted dismissal; appellant timely appealed the dismissal order. The court affirmed in part holding appellant failed to plead any facts showing that appellee acted solely in his own interest to support a charge of willful and intentional interference of his employment contract. As a result of appellee's improper joinder, the district court correctly dismissed appellant's claims against him; however, the court remanded with instruction to vacate its grant of dismissal with prejudice. Alviar v. Lillard, Fifth Circuit, Case No.: 16-11501, 04/14/2017.

16-11501
STEPHEN A. HIGGINSON, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

USA v. Mesquiti, 16-50034 (5th Cir. 04/12/2017)

Mesquiti was charged with one count of bank robbery and one count of aiding and abetting. Prior to trial, the district court granted Mesquiti's motion to dismiss his attorney. The case eventually proceeded to a jury trial, with Mesquiti representing himself, and Mesquiti was found guilty. He retained counsel and appealed his conviction, arguing that the district court deprived him of his constitutional right to counsel by allowing him to represent himself and that the court reversibly erred in denying a continuance request. The court disagreed. It held that Mesquiti, by his words and through his conduct, made a knowing and intelligent relinquishment of his right to counsel, despite being appropriately warned about the likely consequences of his decision. The court also rejected Mesquiti's argument that the district court committed reversible error by not granting him a continuance because Mesquiti did not adequately show what response he would have been able to make with additional time, what jury instructions he would have requested or how their absence prejudiced his case, or what witnesses he might have called and how their testimony would have aided his defense. United States v. Mesquiti, 5th U.S. Circuit Court of Appeals, No. 16-50034, 4/12/17

16-50034
JAMES L. DENNIS, CIRCUIT JUDGE

Court of Appeals of Texas, Thirteenth

Hernandez v. State of Texas, 13-14-00245-CR (TexApp Dist 03/30/2017)

A jury convicted appellant Hector Vargas Hernandez of child sex abuse and the court sentenced him to 40 years. He appealed the conviction on three grounds, arguing the court erred by 1) denying his motion to suppress his confession, 2) denying his request for a jury instruction on the confession, and 3) ordering the jury to reconvene to correct its verdict after the court read it. On the first issue, appellant argued he could not voluntarily, knowingly, or intelligently waive his right to remain silent because the warning police gave him condensed the five warnings required by Tex. Code Crim. Proc. art. 38.22 down to four, and because the Spanish translation of the warnings contained a Portuguese word. The court found that the warnings substantially complied with the requirements, as allowed by Article 38.22. The court also found that the Texas Court of Criminal Appeals on multiple occasions has upheld warnings that similarly combine the five warnings into four. The court also found that appellant indicated he understood his rights, thereby negating his argument that the translation was rendered invalid by the Portuguese word. On the jury instruction issue, appellant sought an instruction that the jury must disregard any evidence it believes was obtained in violation of Article 38.23. The court found that appellant did not contest any facts concerning his confession, such as the duration of his custody or the specific translation of the warnings. With no fact issue in dispute, the court found that the trial court properly denied appellant's request for a jury instruction under Article 38.23, because the statute triggers a jury instruction only when a fact issue exists. On appellant's third issue, the trial court initially read a verdict of not guilty, and the foreperson quickly informed the court that she signed the wrong form and needed to correct it. The court reconvened the jury, and then read the corrected verdict of guilty. The appeals court found that a court has no power to change a jury's verdict without the jury's consent, but under these circumstances ordering the jury to correct its mistake is proper. Having overruled all three issues, the court affirmed the trial court's judgment. Hector Vargas Hernandez v. The State of Texas, Corpus Christi-Edinburg Court of Appeals, Case No. 13-14-00245-CR, 3/30/17.

13-14-00245-CR
LETICIA HINOJOSA, JUSTICE

Court of Appeals of Texas, Fourteenth

Kelley v. The State of Texas, 14-15-00979-CR (TexApp Dist 03/23/2017)

Appellant Yancy Kelley was convicted of robbery. He was accused of throwing a woman to the ground and then stealing her wallet, and he was arrested a week later while driving a car with the same license plate as the car the assailant drove away from the scene. The trial court sentenced appellant to 10 years based on an enhancement for a prior conviction, and he appealed his conviction. Appellant raised two issues: ineffective assistance of counsel, and the trail court erred by allowing certain evidence. On the ineffective assistance issue, appellant argued his counsel should have objected to the state entering video of appellant talking to police during the traffic stop, a video appellant claimed made him "look and sound guilty." The court found counsel didn't object because he believed the video would allow the jury to see appellant profess his innocence without calling appellant to testify and thereby opening himself up to cross-examination. Although appellant did testify at trial, counsel could not have anticipated he would because appellant refused to meet with his court-appoint counsel before the trial and he testified against counsel's advice. The court found counsel's strategy was sound and overruled appellant's issue. On the evidentiary issue, appellant argued the trial court should not have allowed evidence of the victim's identification of appellant in a photo array because police had informed her that an arrestee was in the array. He also argued the court should not have allowed her to identify him during trial, because the ID was tainted by the pre-trial ID. The court found the array was not impermissibly suggestive, even though police told the victim they had arrested someone, because they did not suggest which photo she should chose and because she picked him out immediately upon seeing him. The court also found appellant failed to properly preserve the in-court ID issue. The court affirmed the trial court's judgment. Yancy Kelley v. The State of Texas, Houston 14th Court of Appeals, Case No. 14-15-00979-CR, 3/23/17.

14-15-00979-CR
KEM THOMPSON FROST, CHIEF JUSTICE

Court of Appeals of Texas, Eleventh

Castillo v. State of Texas, 11-14-00280-CR (TexApp Dist 04/13/2017)

Defendant was convicted of murder and sentenced to 50 years in jail. On appeal, defendant contended that the court improperly instructed the jury regarding the accomplice witness rule, that the evidence presented did not the non-accomplice evidence was insufficient to connect defendant to the offense, and the trial court improperly admitted hearsay evidence. Victim was going to meet with defendant so he could pay child support. Then, girlfriend drove defendant to find victim and eventually heard five gunshots. At that time, girlfriend panicked and tried to drive away but Defendant stopped her because he dropped a phone at the crime scene. Girlfriend then left without defendant when he was looking for his phone. Girlfriend heard defendant confess to killing the victim. Girlfriend then turned herself in to the police. Defendant also asked his friend Martinez to help him get rid of the gun. Martinez then went with him on a drive to get rid of the gun. The court found that the evidence was strong enough to support a finding that girlfriend was an accomplice witness because she was the getaway driver but had no knowledge of Defendants intentions when he got in the car. The court also found that the statements alleged to be hearsay fall into the hearsay exception of present sense impression. Therefore, the court affirmed Defendant's conviction. Castillo v. State of Texas, Eleventh Court of Appeals, Case No. 11-14-00280-CR, 4/13/17

11-14-00280-CR
JOHN M. BAILEY, JUSTICE

United States Court of Appeals, Fifth Circuit

USA v. Guillen-Cruz, 16-40131 (5th Cir. 04/10/2017)

Guillen-Cruz pleaded guilty to being found illegally in the United States. The probation officer concluded that Guillen-Cruz's prior conviction for exporting high-capacity rifle magazines constituted a prior aggravated felony for purposes of the sentencing guidelines, triggering an enhancement of Guillen-Ruiz's sentence. Guillen-Cruz appealed, arguing that his prior conviction was for conduct that did not fall under the definition of aggravated felony. Because Guillen-Cruz had not objected to the enhancement in the district court, the court held that he needed to satisfy the "plain error" standard. The court held that Guillen-Cruz satisfied the plain error standard because the statute and regulations made clear that a conviction for exporting high-capacity rifle magazines did not qualify as an aggravated felony; the error affected Guillen-Cruz's substantial rights; and the error affected the fairness, integrity, and public reputation of sentencing proceedings. It accordingly vacated Guillen-Cruz's sentence and remanded the case for sentencing. United States v. Guillen-Cruz, 5th U.S. Circuit Court of Appeals, No. 16-40131, 4/10/17

16-40131
JAMES L. DENNIS, CIRCUIT JUDGE

Court of Appeals of Texas, Eighth District

Clark v. Clark, 08-15-00293-CV (TexApp Dist 03/29/2017)

A discovery dispute arose during a divorce proceeding involving the disclosure of the marital assets. Appellant Richard objected to several requests in a request for production which resulted in the ex-wife filing a motion to compel. The ex-wife believed that the ex-husband did not properly respond to her discovery requests. Upon seeing this, the court issued a warning that attorney's fees could be awarded for prevailing on discovery related issues. The ex-husband responded to the motion compel stating that it was not filed properly and objecting to the requests. The court overruled his objections and requested a response by a specific date. The ex-wife's lawyer then moved for over $4,785 in attorney fees for having to file the motion to compel. The appellate court reviewed these sanctions based on an abuse of discretion standard. However, the appellate court found that the order awarding sanctions was vague, so the case was remanded back to the trial court for further proceedings so that the discovery process could continue. Clark v. Clark, Court of Appeals for the Eighth District, Case No. 08-15-00293, 3/29/17

08-15-00293-CV
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

United States Court of Appeals, Fifth Circuit

Streamline Production v. Streamline Manufacturing, 16-20046 (5th Cir. 04/14/2017)

Streamline Production Systems, Inc. (SPSI) sued Streamline Manufacturing, Inc. (SMI) for trademark infringement under the Lanham Act and Texas common law. SMI stipulated to a preliminary injunction in which it agreed to change its name. SPSI's suit proceeded to a jury trial on the issues of trademark infringement and damages. At the conclusion of SPSI's case, SMI moved for a directed verdict on SPSI's common law trademark infringement claim, arguing that SPSI had not demonstrated any actual damages. The court denied this motion. At the conclusion of all testimony, SMI moved for judgment as a matter of law on all of SPSI's claims, which the district court also denied. The jury then found that SPSI had a valid trademark, that SMI had infringed on the trademark, and that SMI's infringement was the proximate cause of damages to SPSI. However, the jury found that SPSI failed to prove it was entitled to any profit that SMI had earned that was "directly attributable" to its infringing use of the trademarks and that SMI had earned "zero" profit through its infringing use of the trademarks. Nevertheless, the jury awarded SPSI $230,000 as a "reasonable royalty" for SMI's use of the trademark, another $230,000 for unjust enrichment to SMI through its infringing use, and a final $230,000 as exemplary damages. The district court then denied SMI's renewed motion for judgment. SMI appealed. The court held there was sufficient evidence to support the jury's finding that SPSI had a valid trademark and that SMI infringed the mark. It held, however, that there was no evidence supporting the royalty award, the unjust enrichment award or the exemplary damages award. It accordingly affirmed the jury's finding of trademark infringement, but vacated the damages award. Streamline Production Systems, Inc. v. Streamline Manufacturing, Inc., 5th U.S. Circuit Court of Appeals, No. 16-20046, 4/14/17

16-20046
KING,, CIRCUIT JUDGE

Court of Appeals of Texas, Second District

Norhill Energy v. McDaniel, 02-16-00011-CV (TexApp Dist 04/13/2017)

George McDaniel leased 240 acres to appellant Norhill Energy for two years for oil exploration. The project was the first such attempt for Norhill owner Steve Selinger, and it was unsuccessful. The parties entered a new agreement under which appellant would lease the land back to McDaniel for $50,000, and Selinger testified at trial that this arrangement was struck so that McDaniel could sell the land for $60,000. When McDaniel failed to pay – even after selling the land – appellant sued. The jury found in appellant's favor, awarding damages of $50,000 for breach of contract but $0 for a "money had and received" count. Both parties moved for judgment notwithstanding the verdict, and the court granted McDaniel's motion, awarding $0 for breach of contract and entering a take-nothing judgment. An appeal followed. The court held the award of $0 for breach of contract was proper, finding that appellant proved only the breach element of breach of contract but not damages. The court found appellant offered no evidence as to costs it incurred due to the breach, such as removal of its equipment from the land. However, the court ruled in appellant's favor on the money had and received verdict. The court found that although the claim is equitable, and therefore generally barred when a contract controls, it is still applicable in some contract disputes – for example, to correct an overpayment under a contract. Because appellant sought only to enforce McDaniel's obligation under the contract and was not seeking to change its terms, the court held that the contract did not bar the claim. Thus, the trial court should have granted appellant's JNOV motion for a $50,000 award on that claim. The court reversed the trial court's judgment and rendered judgment for appellant. Norhill Energy v. McDaniel, Fort Worth Court of Appeals, Case No. 02-16-00011-CV, 4/13/17.

02-16-00011-CV
BONNIE SUDDERTH, JUSTICE

Court of Appeals of Texas, Thirteenth

Reaves v. City of Corpus Christi, 13-15-00057-CV (TexApp Dist 04/13/2017)

A high-speed police chase of a drunken driver ended when the driver ran a red light and hit a car carrying appellants Hayden Reaves and Billy Rochier. Appellants sued the city of Corpus Christi for their injuries, alleging negligence by its employee, Officer Jorge Fernandez, and several other claims. The city moved to dismiss based on governmental immunity. Roughly 6 months later, well after the statutorily mandated 45-day window to rule on the motion, the court dismissed all claims against the city. An appeal followed on only on the negligence claim, challenging the court's ruling that governmental immunity applied. Appellants advanced three arguments: 1) The trial court erred by dismissing the case after the 45-day window; 2) the city's motion should be governed by Rule 91a and not as a plea to the jurisdiction; and 3) their claim had a valid basis in law. On the first issue, the court found that Tex. R. Civ. P. 91a imposes a mandatory duty on a court to rule on a motion to dismiss within 45 days – but that a failure to do so does not compel a certain outcome or strip the court of its authority to rule thereafter. Rather, a party is limited to mandamus relief to compel the court to rule. The court overruled appellants' issue. On the second issue, the court found that the city's motion was captioned as a Rule 91a motion and must be adjudicated as such. The court noted that a 91a motion disallows extrinsic evidence whereas a plea to the jurisdiction demands it. Allowing parties to "blend" the two standards would allow one side or the other to "artfully dodge" evidentiary questions, the court stated. The court sustained appellants' second issue. On the third issue, the city argued appellants had no basis in law for their claim because the drunken driver, not Fernandez, hit their car, as stated in their claim. The court found that under Texas law, a pleading must only provide fair notice to the other side of the allegations. The court also found that Texas does not follow the higher standard imposed on federal courts under Bell Atlantic Corp. v. Twombly (550 U.S. 544) and Ashcroft v. Iqbal (556 U.S. 662). The court found that appellants' pleading alleged that Fernandez breached a duty to use ordinary care while operating his vehicle and that his breach was the proximate cause of appellants' injuries. Thus, the court found appellants provided fair notice of a claim that would waive immunity under the Texas Tort Claims Act. The court sustained the third issue, and reversed and remanded the case. Reaves v. City of Corpus Christi, Corpus Christi-Edinburg Court of Appeals, Case No. 13-15-00057-CV, 4/13/17.

13-15-00057-CV
NELDA V. RODRIGUEZ, JUSTICE