Recent Decisions

Supreme Court of Texas

First United v. Parker, 15-0708 (TexApp Dist 03/17/2017)

A party is not required to show causation and actual damages when it is seeking equitable remedies in its breach of fiduciary duty claim. The church deposited almost $1.1 million in its law firm's escrow account. Unbeknownst to the church, the law firm's principal (Lamb) withdrew the church's funds and used them for personal or firm expenses. A "contract attorney" working with the firm (Parker) learned of the theft in the summer of 2010, but waited to reveal it to the church until October 2011. The church sued the firm, Lamb and Parker. The trial court granted Parker's motion for summary judgment. After a divided intermediate appellate court affirmed, the church appealed. The court first addressed the intermediate appellate court's holding that summary judgment was properly granted on the breach of fiduciary duty claim because the church did not establish that Parker's untimely disclosure, rather than Lamb's thefts, caused the resulting damages, and thus did not establish causation. The court held that the church was not required to show causation and actual damages as to any equitable remedies it sought from Parker. Recognizing that the church was seeking disgorgement of compensation received by Parker, the court held that it was reversible error for the trial court to enter summary judgment in Parker's favor on the breach of fiduciary duty claim. The court agreed, however, that the trial court correctly granted Parker summary judgment on the church's civil conspiracy claim because there was no evidence of a common plan between Lamb and Parker to steal money and that, while Parker might not have been immediately forthcoming after learning of the theft, this delay did not cause any damages. With respect to the church's claim for aiding and abetting, the court assumed (without deciding) that Texas recognized such a cause of action. The court nevertheless agreed with Parker that there was no evidence that Parker assisted or encouraged Lamb to steal the money, as required to support a viable aiding and abetting claim. Finally, the court held that the evidence, viewed as a whole, did not support a finding that there was an express or implied agreement by Parker to be part of a joint venture with Lamb to steal the church's money, so that the trial court correctly granted Parker's motion for summary judgment with respect to the joint venture claim. First United Pentecostal Church of Beaumont v. Parker, Supreme Court of Texas, No. 15-0708, 3/17/17

15-0708
PHIL JOHNSON, JUSTICE

United States Court of Appeals, Fifth Circuit

Surratt v. McClarin, 16-40486 (5th Cir. 03/14/2017)

Appellant pulled over decedent for signaling one direction but then turning the other. However, the stop was pretextual as earlier that day the officer had been informed that decedent was in possession of narcotics. While in the back of the patrol car, decedent managed to free her right hand from her handcuffs, pull a small baggy of narcotics from underneath her skirt, and place it in her mouth. When the officer returned to the car, he ordered decedent to open her mouth; less than four seconds later he pressed his forearm against decedent's jaw and neck. A struggle ensued and by the time decedent was pulled from the patrol car, she was unresponsive and having a seizure. Decedent's sister and heir filed the instant suit asserting claims which included excessive force and wrongful death. The district court granted appellee's motion for summary judgment judgement concluding the officer was entitled to qualified immunity. On appeal, the court affirmed holding appellant failed to demonstrate that the officer acted objectively unreasonably in light of clearly established law at the time of the incident. Because previous law provided no guidance as to what was precisely reasonable regarding force to an individual's throat where that individual appeared to conceal something in their mouth, the court cannot say the officer acted objectively unreasonably. As such, the grant of summary judgment was affirmed. Surratt v. McClarin, Fifth Circuit, Case No.: 16-40486, 03/14/2017

16-40486
EDITH BROWN CLEMENT, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

Streamline v. Streamline, 16-20046 (5th Cir. 03/16/2017)

Appellee, a custom fabrication company, brought suit under trademark infringement alleging appellant used a similar name and likeness in violation of the Lanham Act and Texas common law. After stipulating to an injunction, the parties proceeded to a jury trial whereby a verdict was returned finding appellant infringed on appellee's valid trademark in its name and awarded damages. The district court subsequently denied appellant's motion for judgment as a matter of law, or in the alternative, for a new trial. Finding insufficient evidence to support the damages award, the court affirmed the jury's finding of trademark infringement but vacated the damages award. The court held the jury properly concluded, based on the evidence, that appellant's logo was suggestive and could likely cause confusion as to source, affiliation or sponsorship. However, the court vacated the damages award finding no evidence was introduced to indicate the parties entered into, negotiated, or discussed a licensing agreement which would warrant royalties damages. Further, unjust enrichment damages were vacated as appellee cited no support for its proposition that merely showing the benefits of eased market entry and referral business, without showing any lost profits, entitled it to such an award. Accordingly, the court vacated the damages award but affirmed the trademark infringement verdict. Streamline Production Systems, Inc. v. Streamline Manufacturing, Inc., Fifth Circuit, Case No.: 16-20046, 03/16/2017

16-20046
KING, CIRCUIT JUDGE

Court of Appeals of Texas, Thirteenth

Briggs v. The State of Texas, 13-15-00147-CR (TexApp Dist 03/09/2017)

Appellant Sandra Coy Briggs pled no contest in January 2012 to intoxication manslaughter of a public servant. Police had taken a blood draw without a warrant, claiming the Texas Transportation Code mandated a blood draw, and it showed a blood-alcohol content of 0.14. Appellant pled no contest under the advice of counsel, who believed the code authorized a warrantless, mandatory blood draw even absent exigent circumstances. After a 2013 Supreme Court decision in Missouri v. McNeely on exigent circumstances for blood draws, appellant moved for a new trial. She argued her no-contest plea was involuntary because the law was incorrectly explained to her. The trial court hearing the motion allowed testimony, over appellant's objection, that death and serious bodily injury are inherently exigent circumstances for a blood draw due to the natural dissipation of alcohol in the blood and the need to gather evidence. The court explicitly agreed with appellant that McNeely applied retroactively to her case, but ruled it did not protect her because exigent circumstances existed, and the court denied her motion. An appeal followed, with appellant arguing 1) the trail court failed to rule on the proper issues, 2) her plea was involuntary because it was based on a misrepresentation of the law, and 3) the trial court's findings on exigent circumstances were not supported by the record. The court found that McNeely, which clarified a 1966 case, required police to look at the totality of circumstances in determining exigent circumstances: not only alcohol's natural dissipation but also the procedures for obtaining a warrant and the availability of a judge. The court found that under McNeely, an accident causing death or serious injury is insufficient by itself to create exigent circumstances to justify an exception to the Fourth Amendment warrant requirement. The court also found that Texas case law subsequent to McNeely clarified that the Texas Transportation Code, although mandating a blood draw in such circumstances, did not mandate a warrantless blood draw. The court rejected the state's argument that the trial court implicitly found appellant's plea was knowing and voluntary, on grounds that nothing in the record supporting such a conclusion. The court held that the trial court improperly based its decision on exigent circumstances rather than on the question of whether the plea was voluntary, and also held that appellant's plea was involuntary. Having sustained appellant's first two issues, the court reversed and remanded the case. Sandra Coy Briggs v. The State of Texas, Corpus Christi-Edinburg Court of Appeals, Case No. 13-15-00147-CR, 3/9/17.

13-15-00147-CR
NELDA V. RODRIGUEZ JUSTICE

Court of Appeals of Texas, Sixth Appellate District

Fowler v. State of Texas, 06-16-00038-CR (TexApp Dist 03/17/2017)

The trial court committed reversible error by admitting a store videotape purporting to show Fowler purchasing a box cutter later used in a burglary because the videotape was not properly authenticated. Near a business that had recently suffered several burglaries where box cutters were used, the police discovered a receipt showing the purchase of box cutters from a local store. The police viewed the surveillance tape at the store, which generally corresponded with the date and time on the receipt, and saw a person believed to be Fowler purchasing the box cutters. Fowler was convicted of burglary. On appeal he argued that, because the surveillance tape was not properly authenticated, it was improperly admitted into evidence. The court held that, while the evidence was generally sufficient to convict Fowler, it was error to admit the surveillance tape because it was not properly authenticated. The court noted that there was no testimony that the store's surveillance system was working properly on the date in question, that it's on-screen clock was correctly set and functioning properly, or that the tape accurately portrayed the events that purportedly occurred at the time and on the date shown in the video recording. Without such proof, the court explained, the videotape was not properly authenticated, and was thus improperly admitted into evidence. It remanded the case for a new trial. Fowler v. Texas, In the Court of Appeals for the Sixth Appellate District at Texarkana, No. 06-16-00038-CR, 3/17/17

06-16-00038-CR
BAILEY C. MOSELEY JUSTICE

Court of Appeals of Texas, Sixth Appellate District

Cotton v. Briley, 06-16-00053-CV (TexApp Dist 03/14/2017)

The trial court did not err in dismissing a suit for want of prosecution where the record showed no activity in 22 months after the suit was filed. The Cottons filed suit in June 2014, alleging that a retirement house they purchased was infested with mold and that there was a pre-existing and unrepaired leakage in the roof. The Cottons sued the sellers, the sellers' agent, her brokerage and a home inspector. After filing the suit, however, the Cotton's attorney did nothing to prosecute it, leading to his dismissal in April 2016. Two of the defendants then filed motions for no-evidence summary judgment and to dismiss the case based for want of prosecution. Although the Cotton's new attorney asked for a continuance, and stated his intent to take depositions, the trial court entered no-evidence summary judgment in favor of the moving parties. The remaining two defendants then moved for no-evidence summary judgment and to dismiss the case for want of prosecution. At a hearing, the new attorney admitted that the Cottons had done nothing in the case between June 2014 and May 2016 (including not responding to discovery served by the defendants), but protested that, since his entry, he had propounded discovery, requested a scheduling order and trial date, hired an expert witness and produced documents. The new attorney argued that the Cottons should not be punished for the prior attorney's conduct. The trial court disagreed and entered an order dismissing the case against all defendants. The court held that, given the lengthy period of no action by the Cottons, the trial court did not abuse its discretion in dismissing the suit for want of prosecution. The court rejected the Cotton's argument that they should not be responsible for the delay, holding that their prior counsel's conduct was attributable to them. The court also held that the new counsel's actions did not enter into the analysis of whether the lengthy delay was sufficient to warrant dismissing the suit. Cotton v. Briley, In the Court of Appeals Sixth Appellate District of Texas at Texarkana, No. 06-16-00053-CV, 3/14/17

06-16-00053-CV
BAILEY C. MOSELEY JUSTICE

Court of Appeals of Texas, Thirteenth

Atkinson v. State of Texas, 13-16-00344-CR (TexApp Dist 03/16/2017)

Atkinson appealed a conviction of manslaughter alleging that there was insufficient evidence to support his conviction. Atkinson stabbed the victim, Rathel, with a knife several times which ultimately lead to Rathel's death. When the police arrived, they observed that the victim suffered many defensive injuries to his fingers, hand, and forearms. After administering Miranda warnings, Atkinson first said that he had been huffing paint and said that the red spot on his pants was from cutting paint. After obtaining Atkinson's consent, the police found the victim's blood spattered around a firepit in his shed which Atkinson said was paint and a nine-inch knife in his front yard. Atkinson claimed that he killed Rathel in self-defense and said that he did not intend to kill Rather, nor could he believe that he died. The court found that the extent and nature of Rathel's wounds provide evidence that Atkinson had a culpable mental state and that the victim's defensive wounds on his arms indicated that Atkinson was acting not in self-defense but with intent to kill. Atkinson's statement that he did not mean to kill Rathel could not believe that he died showed that he was reckless in causing Rathel's death. Moreover, the court found that Atkinson's inconsistent statements to police showed a consciousness of guilt. Therefore, the court affirmed the conviction. Atkinson v. The State of Texas, Thirteenth District of Texas, 13-16-00244-CR

13-16-00344-CR
NELDA V. RODRIGUEZ JUSTICE

United States Court of Appeals, Fifth Circuit

Moss v. Harris Cty, 16-20113 (5th Cir. 03/15/2017)

In this wrongful termination case, appellant sued appellee, his former employer of sixteen years, after being terminated while on leave recovering from back surgery. Appellant claimed he was wrongfully terminated due to his disability and his political speech. Upon a new constable taking office, appellant asked to retire but was terminated instead under the auspices that he exhausted all his FMLA and sick time; termination resulted in appellant receiving a "general discharge" and being denied retirement benefits. Appellant filed suit alleging breach of contract, disability discrimination and free speech and due process violations. Appellee moved for summary judgment, and the district court granted the motion in all respects. On appeal, the court affirmed holding that appellant failed to provide evidence showing that he was medically qualified to perform his job at the time of his termination thereby negating discrimination and failure-to-accommodate claims. As appellant failed to raise a material issue of fact on the question of whether he was qualified for his job under the ADA, he also failed to make out a prima facie retaliation claim under the ADA. Finally, the court affirmed summary judgment on appellant's First Amendment claims as he lacked evidence showing that he was terminated because of his protected speech. Moss v. Harris County Constable Precinct One, Fifth Circuit, Case No.: 16-20113, 03/15/2017

16-20113
HAYNES, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

United Motorcoach Association, Inc. v. City of Austin, 16-50115 (5th Cir. 03/17/2017)

Appellant, a national association of charter-bus companies sought to enjoin regulations affecting their operations enacted by appellee. Under the permitting regulations, operators of charter-bus service must obtain a city permit, which required them to submit an application including various pieces of information, criminal history, vehicle inspections, drivers' licenses, and regulations covering how passengers may be dropped off. Appellant filed this matter seeking a permanent injunction arguing the regulations were preempted by federal law 49 U.S.C. §14501. The district court held that the regulations were not preempted by federal law and denied appellant's request for a permanent injunction. The preemption issue that remained arose from the district court's holding that a savings clause in the statute exempted the permitting regulations from preemption. On appeal, the court affirmed holding the legislative intent behind §14501 was to ensure that its preemption of states' economic authority over motor carriers not restrict the preexisting and traditional state police power over safety. Further, the district court correctly applied the two-part test to determine whether the regulations were responsive to §14501's focus on safety, asking (1) whether there was a safety motivation for the scheme, and (2) whether there was a nexus between the provision and the safety concern. As the ordinance contained numerous safety-purpose statements, the court affirmed the judgment of the district court. United Motorcoach Association, Inc. v. City of Austin, Fifth Circuit, Case No.: 16-50115, 03/17/2017

16-50115
LESLIE H. SOUTHWICK, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

Clark v. Davis, 14-70034 (5th Cir. 03/10/2017)

Appellant Troy Clark, a drug dealer, murdered an acquaintance out of fear she would notify police about his operation. In the punishment phase of his trial in state court in 2000, appellant directed his counsel to conduct a limited investigation of mitigating factors. He also testified against counsel's advice and told the court, in response to a prosecutor's question, that he wanted a death sentence, which the court imposed. In state and federal habeas hearings, new counsel argued the original counsel was ineffective based on the limited investigation, an argument those courts rejected. After two Supreme Court decisions carved out an exception to Texas law that would allow appellant to file a claim on grounds that the new counsel was ineffective, he sought to do so, filing a Fed. Rule of Civ. Pro. 60(b)(6) motion. The trial court denied his claim and an appeal followed. Appellant argued that the new counsel was ineffective due to a conflict of interest because he presented both the state and federal habeas claims. However, the appeals court found that his motion was untimely. The latter of the two decisions, Trevino v. Thayler (133 S. Ct. 1911), was issued in May 2013, more than 15 months before appellant filed his claim in September 2014. The court rejected his argument that the touchstone for timeliness of his motion should be the date the court first allowed him to replace the new counsel with a third counsel, in May 2014. The court found that his motion did not explain why he did not seek a third counsel sooner than that date, at which point Trevino had been published for a year. The court declined to address other grounds on which the trial court denied his motion because the motion was untimely. The court affirmed the trial court's judgment denying the 60(b)(6) motion. Clark v. Davis, Fifth Circuit, Case No. 14-70034, 3/10/17.

14-70034
PRISCILLA R. OWEN, CIRCUIT JUDGE

Supreme Court of Texas

Engelman v. Shields, 15-0188 (TexApp Dist 03/17/2017)

In 1992, Shields Brothers sued the Engelman Irrigation District, alleging that the governmental entity breached a contract to deliver water to Shields. After the trial court denied Engelman's governmental immunity defense, the jury found for Shields and awarded it damages. Engelman appealed, but the appellate court agreed that "sue and be sued" language in its charter waived any governmental immunity, and the judgment became final. Engelman did not satisfy the judgment; instead, it sought bankruptcy protection. While the legal question of whether it could file for bankruptcy protection was on appeal, the Texas Supreme Court held, in Tooke v. City of Mexia, that the "sue and be sued" language did not waive governmental immunity. Engelman thereafter brought a separate declaratory judgment action, alleging that the judgment was void. After the trial court denied Engelman's claim for declaratory relief, and the intermediate appellate court affirmed, Engelman appealed to the Texas Supreme Court. The court held that Tooke applied retroactively to cases pending when it was decided. On the other hand, it held, decisions generally do not apply retroactively to cases that have already proceeded to a final judgment. The court held that it would be "counter to the trend of Texas law and of American jurisprudence generally" to allow Engelman to challenge a final judgment through a collateral attack in a later proceeding. It found nothing in the law or equity allowed Engelman to upset the judgment entered many years earlier. Engelman Irrigation Dist. v. Shields Brothers, Inc., In the Supreme Court of Texas, No. 15-0188, 3/17/17

15-0188
DON R. WILLETT, JUSTICE

United States Court of Appeals, Fifth Circuit

Releford v. City of Houston, 16-20193 (5th Cir. 03/09/2017)

Appellant Jason Rosemon, a Houston police officer, shot and killed a suspect during a call. The suspect, Kenneth Brian Releford, allegedly broke into a neighbor's home and assaulted two of its occupants but was unarmed when appellant shot him. Releford's estate sued appellant, and the parties widely disputed the facts of the case. Rosemon claimed that Releford charged at him in a dark house with his left hand hidden behind his back and refused appellant's orders to stand down and show his hands. Releford's estate claimed the shooting took place outside Releford's home, that Releford never charged appellant, and that his hands were visible at all times. Appellant filed for summary judgment based on qualified immunity, the trial court denied his motion, and an interlocutory appeal followed. The court, pursuant to Kinney v. Weaver (367 F.3d 337), accepted the plaintiff's version of facts as true for the purposes of the interlocutory appeal. Under those facts, the court denied appellant's claim of qualified immunity, as appellant was outside his discretion by shooting an unarmed suspect who posed no danger. The court also dismissed his appeal "to the extent that Rosemon argues that he is entitled to qualified immunity under a different version of the facts," citing lack of appellate jurisdiction. The court found that in a genuine dispute of fact regarding qualified immunity, under Lyle v. Bexar City (560 F.3d 404), it has jurisdiction only to determine whether the disputed facts are genuine under. The court dismissed the appeal. Releford v. Rosemon, Fifth Circuit, Case No. 16-20193, 3/10/17.

16-20193

United States Court of Appeals, Fifth Circuit

USA v. Sanchez, 15-51217 (5th Cir. 03/09/2017)

Santiago Sanchez appealed from a sentence of 135 months for aiding and abetting a bank robbery and "otherwise using" a gun during the robbery. The "otherwise using" finding resulted in a six-point enhancement under federal sentencing guidelines; along with other enhancements, his sentencing level rose from a base of 20 to a total of 31. Sanchez argued on appeal that court erred by imposing a six-point enhancement and that a four- or five-point enhancement would be more appropriate, because his use of the gun fit the legal definition of "brandishing" rather than "otherwise using" it. The appeals court found that the trial judge explicitly stated that he would have imposed the same sentence even at a lower sentencing level. The court found that similar statements amounted to harmless error under United States v. Castro-Alfonso (841 F.3d 292) and other cases, and the court also stated that it does not require trial judges to "recite magic words" when making its rulings. The court therefore held that any error was harmless and affirmed the sentence. United States of America v. Santiago Sanchez, Fifth Circuit, Case No. 15-51217, 3/9/17.

15-51217
Criminal Law

United States Court of Appeals, Fifth Circuit

Matter of Galaz, 15-51194 (5th Cir. 03/10/2017)

The court affirmed the district court's decision, which adopted the bankruptcy court's finding, that Raul Galaz (Raul) acted with actual intent to defraud when he transferred all of the royalty rights of a former band to a new entity controlled by his father, despite the fact that some of those royalty rights belonged to Raul's former wife: Lisa Galaz (Lisa). Raul founded Artist Rights Foundation, LLC (ARF) with Julian Jackson in 1998, and each originally held a 50 percent membership interest in ARF. When Lisa divorced Raul in 2002, she obtained a 25 percent economic interest in ARF. In June 2005, without the knowledge of Jackson or Lisa, Raul transferred all of ARF's royalty rights to "Segundo Suenos," an entity controlled by his father. Although royalties thereafter began to generate a substantial amount of revenue, Lisa did not receive any share, despite her 25 percent interest in ARF. As part of a bankruptcy proceeding, Lisa brought an adversary proceeding, alleging the transfer was fraudulent to defraud her out of her interest. The bankruptcy court found, and the district court agreed, that the purported transfer was fraudulent under the Texas Uniform Fraudulent Transfers Act (TUFTA). Reviewing the record as a whole, including that Raul transferred ARF's assets to an interested party (his father); Raul retained control of the property after the transfer; and Raul concealed the transfer from Lisa, the court held that the district court did not clearly err in adopting the bankruptcy court's finding of fraudulent intent. The court also affirmed the district court's award of $242,329 to Lisa, which was approximately 25% of the royalties realized by Segundo during the relevant time period. It held that the district court did not err in not reducing this award by expenses allegedly incurred by Segundo during the same time period, because Segundo did not keep contemporaneous documentation, and because of the finding of actual intent to defraud. Galaz v. Galaz, 5th U.S. Circuit Court of Appeals No. 15-55194, 3/10/17

15-51194
EDITH BROWN CLEMENT, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

Geophysical Service v. TGS-NOPEC Geophysical Company, 15-20706 (5th Cir. 03/10/2017)

The court held that the district court improperly dismissed a claim for copyright infringement under the "act of state" doctrine and remanded it for consideration of the "first sale" doctrine by the district court. The court held, however, that the contributory infringement claim was properly dismissed by the district court because it was based entirely upon alleged extraterritorial infringing conduct, which the copyright infringement section of the Copyright Act did not reach. Geophysical is a Canadian company that uses sound waves to create a seismic picture of undersea geologic areas. Under Canadian law, these seismic pictures are required to be submitted to an agency (CNLOP), which keeps them confidential for 10 years. In 1999, TGS-NOPEC requested, and received, copies of Geophysical's old seismic pictures. According to Geophysical, TGS-NOPEC used that information to produce its own seismic pictures, and also disseminated the Geophysical information to third parties. Geophysical sued TGS-NOPEC for copyright infringement and contributory infringement. The district court granted TGS-NOPEC's motion to dismiss. On appeal, the court first considered TGS-NOPEC's argument that, because Geophysical did not allege domestic copyright infringement, its claims were beyond the reach of the Copyright Act. The court held that "domestic" conduct was an element of a copyright infringement claim, but not a jurisdictional defect. It held that, because TGS imported the copies of Geophysical's documents into Texas by causing the CNLOP Board to send them there, the act of importation occurred in the United States and was actionable under the copyright infringement section of the Copyright Act. The court next considered TGS-NOPEC's argument that dismissal of the copyright infringement claim was proper because the Canadian government had authorized the making of copies and the US court should refrain from deciding if that decision was lawful, under the "act of state" doctrine. It rejected this argument, explaining that, while the "act of state" doctrine counsels that a court should avoid adjudicating a foreign government's decision, here, the US court was not being asked to determine if CNLOP's conduct was valid, but simply to determine the impact of its conduct on copyright law. The court next considered whether the "first sale" doctrine might apply to bar Geophysical's copyright infringement claim but held that this argument should first be considered by the district court, which had not reached it because of its "act of state" decision. Finally, the court affirmed dismissal of Geophysical's contributory infringement claim, holding that this section of the statute did not extend to extraterritorial conduct. Geophysical Service v. TGS-NOPEC Geophysical Company, 5th U.S. Circuit Court of Appeals, No. 15-20706, 3/10/17

15-20706
PATRICK E. HIGGINBOTHAM, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

Reyes v. Manor, 16-50542 (5th Cir. 03/07/2017)

The court affirmed the district court's decision, which held that the majority of the student's claims under the Individuals with Disabilities Education Improvement Act (IDEA) were barred by a one-year statute of limitations, and that the student failed to administratively exhaust his claims under 504 of the Rehabilitation Act. The parent of a student with severe intellectual disabilities and autism filed an administrative complaint against the school district, alleging that it failed to provide the student with appropriate education services guaranteed by the IDEA. Although the administrative complaint also included claims under section 504 of the Rehabilitation Act, the prehearing request for relief did not mention those claims. As such, the hearing officer focused only on the IDEA claims. Because Texas requires claims to be brought within one year of the event that serves as the basis for the complaint, the hearing officer focused only on the preceding year, and found that the district did not violate the student's IDEA rights during this period. The parent then filed suit in federal court. The district court granted the district's motion for judgment based upon the administrative record. On appeal, the court agreed that any claims outside the one-year statute of limitations were time-barred, and that the statute of limitations was not tolled. With respect to the Rehabilitation Act claims, the court agreed that simply referencing them in the complaint was not enough to comply with the requirement for administrative exhaustion. The court rejected two new arguments regarding exhaustion that were advanced by the parent because they were not made in the district court, and could not be raised for the first time on appeal. Reyes v. Manor Indep. School Dist., 5th U.S. Circuit Court of Appeals, No. 16-50542, 3/7/17

16-50542
GREGG COSTA, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

Caldwell v. KHOU-TV, 16-20408 (5th Cir. 03/06/2017)

The court held that, because KHOU-TV gave shifting explanations for why it terminated Caldwell's employment, this raised a disputed issue of material fact over whether its decision might be pretext for unlawful discrimination or retaliation, meaning that the district court erred in granting KHOU-TV's motion for summary judgment on Caldwell's claims under the Americans with Disabilities Act and the Family and Medical Leave Act. Caldwell began working at KHOU-TV in 1995 as a video editor. Caldwell moved around with the assistance of crutches. Although part of Caldwell's job included working in the electronic digital recording (EDR) room, Caldwell's editors explained that they reduced his time in the EDR because of its tight space. Despite this, Caldwell testified that he spent time in the EDR while other editors were on break, and kept himself up to date on EDR changes. Shortly after Caldwell told his supervisor and the human resources manager that he would need to take leave for two upcoming surgeries, KHOU-TV's corporate parent mandated a reduction-in-force, requiring KHOU to eliminate two editor positions. After one of the positions eliminated was the Caldwell position, Caldwell sued, alleging his termination violated both the ADA and FMLA. The district court granted KHOU-TV's motion for summary judgment. On appeal, the court held that summary judgment was improperly granted. The court focused on the fact that KHOU-TV gave shifting reasons for the termination decision, noting that an employer's inconsistent explanations for its employment decisions at different times permits a jury to infer that the employer's proffered reasons are pretextual. The court also held that summary judgment was improper because there was a disputed issue of material fact over whether KHOU-TV prevented Caldwell from working in the EDR, which might also support a pretext argument. Caldwell v. KHOU-TV, 5th U.S. Circuit Court of Appeals No. 16-20408, 3/6/17

16-20408
EDWARD C. PRADO, CIRCUIT JUDGE

Court of Appeals of Texas, Eighth District

City of El Paso v. Mountain Vista Builders, Inc., 08-15-00186-CV (TexApp Dist 03/08/2017)

Mountain Vista Builders developed several plots of land for sale, and appellant the City of El Paso sued in 2009 for unpaid property taxes. The case eventually went to trial in 2015. Mountain Vista countered that it had no notice of the taxes because the city consistently sent tax notices to Mountain Vista's previous business address even after Mountain Vista attempted to correct the address. Furthermore, as Mountain Vista sold off the various developed lots after 2009, the title companies completing the sales showed no tax issues connected to the properties. The trial court entered a take-nothing judgment against the city, which appealed. In its first issue, appellant argued the trial court lacked jurisdiction because Mountain Vista was required to raise its lack of notice claims and related arguments to the El Paso Central Appraisal District. The court found that the appraisal district had exclusive jurisdiction under Tex. Tax Code §33, that it was in a better position than the trial court to sort out issues such as timing of delivery and when information should have showed on a title search, and that Tex. Tax Code §41.44 allows property owners to dispute delinquent taxes when they claim bills were not delivered. The court thus sustained this issue. In its second issue, appellant argued the trial court improperly allowed evidence on defenses that Mountain Vista did not plead, and the court sustained this issue. The court did not reach the city's third issue because the first two were sustained. The court reversed and remanded the trial court's judgment. City of El Paso v. Mountain Vista Builders, Inc., El Paso Court of Appeals, Case No. 08-15-00186-CV, 3/8/17.

08-15-00186-CV
ANN CRAWFORD McCLURE, JUSTICE

Court of Appeals of Texas, Eighth District

Ramirez v. The State of Texas, 08-15-00090-CR (TexApp Dist 02/28/2017)

Appellant Jesus Ramirez was convicted of indecency with a child for an incident with his friend's 9-year-old daughter during a party at the friend's house. Appellant was convicted on a count of touching her breasts but acquitted on a count of touching her genitals. He appealed, contending the evidence was insufficient, the trial court improperly declined to grant a mistrial, and his counsel was ineffective. The insufficient evidence claim focused in part on the inconsistency of an acquittal on one count but conviction on another, because the evidence – testimony of the girl and her mother – was the same for both. However, the court found that both the U.S. Supreme Court and Texas courts have found that juries do not need to show this level of consistency in their verdicts because each count is treated as a separate indictment. Furthermore, the court found that a rational jury might have found the girl's description of the incident more credible in some parts than others. The court also denied appellant's claim that the evidence was insufficient due to a lack of DNA evidence, noting that the victim's testimony is sufficient by statute to support a charge of indecency with a minor (Tex. Code Crim. Proc. art. 38.07) and that the specific conduct alleged would not yield DNA samples. The second claim, failure to grant a mistrial, was based on a sheriff officer improperly testifying that he found the girl's outcry to be credible. However, the court found that a lone statement is not serious misconduct, that the trial court properly cured the error by immediately instructing the jury to disregard the remark, and there was no harm because the jury had "several basis" to convict other than the comment. Thus, the court overruled this issue. Lastly, the court rejected the ineffective counsel charge mostly because appellant failed to show counsel's decisions rose to the level of errors or that they affected the outcome of the case. In one sub-issue, the court found that counsel's failure to pursue appellant's application for probation generally can rise to the level of ineffective assistance, but here there was no harm because probation is not available for indecency with a child younger than 14. Jesus Ramirez v. The State of Texas, El Paso Court of Appeals, Case No. 08-15-00090-CR, 2/28/17.

08-15-00090-CR
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

Court of Appeals of Texas, Eighth District

Mayfield v. Peek, 08-15-00018-CV (TexApp Dist 02/28/2017)

At its core, this case involved two siblings fighting over an inheritance from their parents. On appeal, the court was tasked with determining whether one sibling had standing to complain of the other's actions, and in what court such fight should take place. Appellant-sister claimed her brother, appellee and executor of the estate, prevailed upon their mother to remove assets from a revocable trust at a time when their mother allegedly lacked the mental capacity to do so. Appellee, however, convinced the district court that appellant lacked standing to make that claim and that another court should hear such claim as their mother's will was in probate. The court reversed concluded that appellant had standing to challenge the trust transaction and that the trial court was not presented with a proper basis establishing that another court had acquired dominant jurisdiction. The court noted that, although mother was entitled to alter her revocable trust, the trial court erred in excluding consideration of mental incapacity in determining whether appellant had standing to bring her trust claims. Although the probate court was the proper forum to hear claims regarding the will, the court concluded trust claims were to be heard by the district court who held original and exclusive jurisdiction over all proceedings against a trustee and all proceedings concerning a trust. Tex.Prop.Code Ann §115.001(a). Accordingly, the order of the district court was reversed in part as it related to the trust claims. Mayfield v. Peek, El Paso Court of Appeals, Case No.: 08-15-00018-CV, 02/28/2017

08-15-00018-CV
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

Court of Appeals of Texas, Third District

Long Canyon Phase II and III Homeowners Assoc. v. Cashion, 03-15-00498-CV (TexApp Dist 03/03/2017)

Appellant, a homeowners association, alleged in a letter to owners Chris and Lisa Cashion that the Cashions damaged a drainage easement. The letter, part of a long-standing dispute, threatened fines and a lawsuit. The Cashions responded by suing for harassment, negligence, and severe emotional distress, as well as injunctive and declaratory relief. Appellant moved to dismiss under the Texas Citizens Participatory Act. The trial court denied the motion, and an interlocutory appeal followed. Appellant argued the Cashions' claims infringe on appellant's right to petition because the claims are based on a letter notifying them of an intent to sue, and infringe on appellant's right of association because the latter was in defense of the HOA's common interests in preserving the property. Appellant also argued the Cashions' claims are based entirely on its letter, giving rise to the TCPA violation. The court found the Cashions presented a broader base of evidence presenting a pattern of harassment. Specifically, it found that Cashions claimed appellant monitored them and their guests and that the Cashions had prevailed in an earlier suit for the return of a $10,000 construction deposit. The court then found that the letter was not, as appellant claimed, a communication "pertaining to" a judicial proceeding, because the letter pre-dated any proceeding. However, the court also found that the letter qualified for TCPA protection as an expression of the right to petition, and that after appellant met this initial burden the Cashions failed to establish a prima facia case for their claims. The court found that the Cashions did not set out elements of their claims or apply the law to the facts, and also did not provide evidence of symptoms rising to the level of emotional distress such as crying spells, nausea, difficulty sleeping, etc. The court reversed the trial court's judgment and rendered judgment dismissing the Cashions' claims on all but the declaratory relief claim, and affirmed and remanded for further proceedings. Long Canyon Phase II and III Homeowners Assoc. v. Cashion, Austin Court of Appeals, Case No. 03-15-00498-CV, 3/3/17.

03-15-00498-CV
JEFF ROSE, CHIEF JUSTICE

United States Court of Appeals, Fourth Circuit

Saldana v. Hinojosa, 04-16-00115-CV (4th COA. 03/08/2017)

Appellant Ruth Isela Acevedo Saldana sued Sonia Patricia Hinojosa for injuries from a car accident. She twice filed for a continuance; when she did not show up to court the second time, the court dismissed the case for lack of prosecution rather than ruling on the continuance motion. On appeal, she argued the court failed to provide adequate notice of its intent to dismiss. The appeals court found that a trial court has the power to dismiss under Texas Civil Procedure and under its inherent power to control its docket. But before dismissal, court must provide the party subject to dismissal with notice under Villarreal v. San Antonio Truck & Equip. (994 S.W.2d 628, 630). The court found the notice provided appellant was even more meager than the notice found defective in Villarreal, which referenced a possible dismissal under civil procedure rules but not under the court's inherent authority. The notice in the present case merely stated the date and time for the court hearing, requested appellant's presence via counsel, and listed the acronym "DWOP" (for "Dismissal for Want Of Prosecution"). It included no language referencing either source of authority to dismiss. Thus, the court held that the trial court erred in dismissing the case, reversed the court's order, and remanded the case. Saldana v. Hinojosa, San Antonio Court of Appeals, Case No. 04-16-00115-CV, 3/8/17.

04-16-00115-CV
MARIALYN BARNARD, JUSTICE

Court of Appeals of Texas, Fourteenth

In Re Wilmington Trust, 14-17-00074-CV (TexApp Dist 03/09/2017)

Relator sued real party-in-interest for breach of a guarantee for the payment of $91.6 million for the purchase of a maritime cargo vessel. Real party-in-interest objected to venue and moved to dismiss and quash service. The trial court granted the motions with no additional language in its order. Relator subsequently moved to substitute counsel and resolve the order arguing it was not a final disposition of the case. The court denied the motions concluding its prior order was a final order and its plenary power had expired. Relator filed the instant petition for writ of mandamus asking the court to vacate the order arguing it was not a final appealable judgment because it contained no decree disposing of the case. The court conditionally granted mandamus relief concluding "an order that merely grants a motion for judgment is in no sense a judgment itself. It adjudicates nothing." Naaman v. Grider,126 S.W.3d 73, 74 (Tex. 2003) The court noted the order was not a final judgment because it did not actually dispose of any claim or party or unequivocally state that it finally disposes of all claims and all parties and was appealable. Because the order did not dispose of the action or include decretal language typically seen in a judgment, the trial court's denial of relator's motions was erroneous and a conditional mandamus relief was granted. In re Wilmington Trust, National Association, Houston 14th Court of Appeals, Case No.: 14-17-00074-CV, 03/09/2017

14-17-00074-CV
MARTHA HILL JAMISON JUSTICE

Court of Appeals of Texas, Fourteenth

Pena v. The State of Texas, 14-14-00599-CR (TexApp Dist 03/02/2017)

Appellant Hector Pena, a semi-truck driver, ran over and killed an 11-year-old girl with his truck. Evidence at trial showed he made a wide turn onto the street where she was waiting for a bus, with a dispute as to whether a wide or narrow turn was warranted at that intersection. Evidence also differed as to whether appellant hit the girl, knocking her under the truck, or whether she reached under it for unknown reasons and got caught up and run over. The jury convicted appellant of criminally negligent homicide, found that he used a deadly weapon (the truck), and sentenced him to four years. He appealed, claiming insufficient evidence for both the conviction and the deadly-weapon finding. On the first issue, appellant claimed the evidence was insufficient to support the mens rea requirement of criminally negligent homicide because his wide turn was arguably a proper way to maneuver his truck. The court found the question about the turn was moot because appellant also failed to honk and to stop when he lost sight of her, which a reasonable person would have done regardless of how he or she made the turn. Appellant also argued he could not foresee the child reaching under his truck, but the court found a reasonable jury could have found he was the "but-for" cause of her death even if they accepted the disputed testimony as to her initial contact with the truck. On the deadly weapon issue, which enhanced his sentence by at least two years, appellant argued the evidence showed he was driving the truck slower than 5 m.p.h. The court found that a rational jury could find that making the wide turn at any speed was deadly to a child. Thus, the court overruled this issue as well. The court also rejected appellant's claim that the appeal amounted to double jeopardy, based on his previous argument on the same grounds during an earlier interlocutory appeal by the state. The court found the argument was moot because appellant, not the state, brought the present appeal. The court affirmed the trial court's judgment. Hector A. Pena v. The State of Texas, Houston 14th Court of Appeals, Case No. 14-14-00599-CR, 3/2/17.

14-14-00599-CR
KEVIN JEWELL JUSTICE

United States Court of Appeals, Fifth Circuit

USA v. Huor, 15-50174 (5th Cir. 03/10/2017)

The court held that the district court adequately explained why it was requiring Huor, after he failed to register as a sex offender, to undergo continuing treatment by a therapist and that it properly retained discretion to remove this condition based upon the therapist's recommendation. The court held, however, that the district court did not adequately explain why it prohibited Huor from possessing sexually stimulating materials, and that the district court improperly imposed several other conditions. Huor was required to register as a sex offender because of a prior rape conviction, but failed to do so. He was arrested again, and pled guilty to failing to register as a sex offender. As part of his sentence, the district court imposed several conditions, including continuing sex offender treatment by a therapist and a 10-year prohibition against the possession of sexually stimulated materials. On appeal, the court first rejected Huor's argument that the continuing treatment sentence lacked a rational basis, finding that the district court adequately explained why the continuing treatment was reasonably related to the nature and circumstances of Huor's crime. With respect to the prohibition on possessing sexually stimulated materials, the court held that the district court did not adequately explain why the evidence supported a 10-year ban, and remanded the issue for a further examination by the district court on this issue. Huor also argued that the district court required him to follow all restrictions or requirements imposed by his therapist, and that this delegation was improper under the law. The court agreed, finding that this was "plain error" under its prior decisions, and vacated this condition of sentence. It also vacated a condition imposed by the district court on Huor in its written order because it was not announced during the hearing, when Huor could have challenged it. The court also vacated another written condition that conflicted with a related, but separate, condition that was orally discussed at the hearing, because the oral condition controlled. United States v. Huor, 5th U.S. Circuit Court of Appeals, No. 15-50174, 3/10/17

15-50174
REAVLEY, CIRCUIT JUDGE

Court of Appeals of Texas, Fourteenth

QTAT BPO Solutions v. Lee & Murphy Law Firm, 14-16-00148-CV (TexApp Dist 03/07/2017)

Appellant QTAT BPO Solutions screened potential medical malpractice clients for two law firms under a non-disclosure agreement. After the law firms ended the business arrangement, appellant sought payment. Eventually, appellant's attorney contacted one of the law firms, attaching a spreadsheet with more than 26,000 names that appellant had screened and seeking more information. When appellant sued, claiming it was owed $15 million but paid only $2 million, the law firms countersued, claiming appellant broke the non-disclosure agreement by sharing the names and other protected information with their attorney. Appellant moved to dismiss the countersuit under the Texas Citizens Participatory Act, arguing the information was communicated to its attorney as part of a judicial proceeding, and the court denied the motion. An appeal followed. Appellant argued it had to share the names with its counsel as part of a judicial proceeding. But the court found that the Fifth Circuit rejected this argument in Levatino v. Apple Tree Café Touring (486 S.W.3d 724) and concluded that the term "judicial proceeding" means a pending proceeding and does not include pre-suit discovery. The court rejected appellant's argument that the information pertained to suits already brought by the law firms, but the court declined to consider this argument because it was not raised at trial. The court also found that appellant waived any challenged based on its contention that the issue is a matter of public concern because it insufficiently briefed this issue. Because appellant failed to show that the TCPA applied to this case, the court concluded that it lacked appellate jurisdiction to hear a claim under the TCPA and dismissed the appeal. QTAT BPO Solutions v. Lee & Murphy Law Firm, Houston 14th Court of Appeals, Case No. 14-16-00148-CV, 3/7/17.

14-16-00148-CV
KEM THOMPSON FROST CHIEF JUSTICE

Court of Appeals of Texas, Fourteenth

Nawracaj v. Genesys, 14-15-00602-CV (TexApp Dist 03/07/2017)

Appellant Richard Nawracaj, an Illinois attorney, represented Genesys Software Systems in several matters, including a lawsuit Genesys filed in Dallas. Genesys is foreign to Texas. When the local counsel appellant hired for the trial, Travis Law Firm, charged Genesys allegedly exorbitant fees, appellant advised Genesys not to pay, prompting Travis to sue Genesys. Genesys countersued and added appellant as a third party, filing breach of contract, fraud, and related claims. Appellant challenged the trial court's personal jurisdiction over him on grounds that neither he nor Genesys resides in Texas. The court denied his challenge and an appeal followed. Appellant argued that Texas' long-arm statute did not provide jurisdiction and that the assertion of personal jurisdiction violated due process. On the first issue, the court found Genesys alleged a tort committed in Texas because appellant failed to properly supervise Travis and the allegation is sufficient to trigger the statute. On the due process claim, appellant argued Genesys did not prove he established minimum contacts with Texas and that the ruling violated fair play because the parties had agreed to arbitrate their contract disputes in Illinois. The court found that appellant made minimum contacts by by researching and hiring local counsel, gaining admission pro hac vice, and personally handling most of the work in the case – even though he never set foot in Texas. The court also found appellant's physical location is not dispositive of personal jurisdiction under Burger King Corp. v. Rudzewicz (471 U.S. 462). As to fair play, the court found that the Texas Supreme Court rejected the argument that an arbitration agreement negates minimum contacts in Michiana Easy Livin' Country, Inc. v. Holten (168 S.W.3d 777). In that case, the Supreme Court noted that consent to jurisdiction in one forum does not foreclose actions in another. The appeals court also found that the arbitration clause itself contemplated actions in other jurisdictions because it allowed appellant to enforce it in any competent jurisdiction, and that allowing the action in Texas furthers the interests of justice because Illinois had no connection to the case. Having overruled appellant's issues, the court affirmed the trial court's judgment and remanded to continue proceedings. Nawracaj v. Genesys Software Systems, Houston 14th Court of Appeals, Case No. 14-15-00602-CV, 3/7/17.

14-15-00602-CV
J. BRETT BUSBY JUSTICE

Court of Appeals of Texas, Sixth Appellate District

In the Interest of J.I.M., 06-16-00080-CV (TexApp Dist 03/09/2017)

The Texas Department of Family and Protective Services petitioned to terminate the parental rights of J.I.M.'s mother and father in 2015. The Department filed in the Court of Law No. 2 of Gregg County, which ordered emergency temporary orders terminating parentage. However, the Gregg County District Court had determined parentage and conservatorship issues in 2010, and retained exclusive continuing jurisdiction. Based on the District Court's jurisdiction, the mother appealed. The appeals court found that the Court of Law was required to transfer the case to a court with continuing, exclusive jurisdiction, under the same statute that grants authority to take emergency possession of children (Tex. Fam. Code §262). It also found that the 2010 order was entered as an exhibit at trial, giving the Court of Law notice that another court had jurisdiction. Furthermore, the Department's affidavit, entered as part of its petition, and the Attorney General's answer were sufficient to provide notice. Because the Court of Law lacked jurisdiction, its judgment was void, and therefore the appeals court vacated the judgment. In the Interest of J.I.M., a child, Texarkana Court of Appeals, Case No. 06-16-00080-CV, 3/9/17.

06-16-00080-CV
RALPH K. BURGESS JUSTICE

United States Court of Appeals, Fifth Circuit

Ruiz v. Davis, 17-70006 (5th Cir. 03/06/2017)

The court held that Ruiz, a death-row inmate facing imminent execution, failed to demonstrate that he was entitled to a certificate of appealability (COA) because he had not shown that a significant delay in time between the date of his conviction and the date of his execution constituted a denial of a constitutional right, and his complaint about solitary confinement was not raised in a timely fashion. Ruiz was convicted for the 1992 murder of Theresa Rodriguez, and was sentenced for death. Ruiz filed a petition in the Texas state courts, arguing, among other grounds, that he was entitled to relief because of the allegedly unconstitutional combination of (1) a significant delay in time between the date of his conviction and the date of his execution and (2) the conditions of his confinement, including multiple prior last-minute stays and withdrawn execution dates he faced during that delay. The Texas Court of Appeals dismissed Ruiz's petition. Ruiz then waited three months before filing his petition for a writ of habeas corpus in the district court on February 10, 2017, less than a month before his March 7, 2017 execution date. After the district court dismissed that petition and denied the COA, Ruiz appealed. The court held that, even under the de novo standard of review urged by Ruiz, Ruiz had not made the required "substantial showing of the denial of a constitutional right." To the contrary, it held that no court had found that a lengthy stay on death row, while the prisoner pursued appeals, violated the Eighth Amendment. With respect to Ruiz's argument that the conditions of solitary confinement on death row violated his right to due process or his substantive rights under the Eighth Amendment, the court held that Ruiz had a path for seeking redress: a suit under §1983. It observed that Ruiz was a named plaintiff in a §1983 case the prior year, but voiced no concern regarding Texas's death row conditions of confinement. As such, the court held, his complaint was too late. Ruiz v. Davis, 5th U.S. Circuit Court of Appeals, No. 17-70006, 3/6/17

16-20408
PATRICK E. HIGGINBOTHAM, CIRCUIT JUDGE

Court of Appeals of Texas, Eighth District

Burrus v. Reyes, 08-14-00265-CV (TexApp Dist 03/08/2017)

Appellees sued for breach of contract, statutory fraud, money had and received, and for violations of the Texas Property Code following appellant's sale of their home. Appellees argued that they thought they were buying a mobile home with land from appellant under an oral contract. Following 17 years of residing and improving the home, appellant sold the lot to a third party contending appellees were merely renting the property. The jury found that appellant had agreed to sell the property, breached that agreement, and that her oral agreement to sell was enforceable under the partial-performance exception to the statute of frauds. Appellant appealed on multiple grounds, contending the evidence was insufficient to show appellees made the necessary permanent improvements to take an oral agreement out of the statute of frauds, to show that there was a meeting of the minds, or to show that the parties intended to enter into a contract for deed. The court affirmed holding appellees provided sufficient evidence that they made substantial expenditures beyond the mere payment of consideration and that those improvements were valuable. Despite the improvements being subsequently damaged or destroyed, the court held they were significant to invoke the partial performance exception. Finally, the court held the parties clearly understood and agreed upon the subject property with all essential terms to enter into an enforceable contract. Accordingly, the judgment of the jury was affirmed. Burrus v. Reyes, El Paso Court of Appeals, Case No.: 08-14-00265-CV, 03/08/2017

08-14-00265-CV
YVONNE T. RODRIGUEZ, JUSTICE

United States Court of Appeals, Fifth Circuit

Baylor County Hosp. Dist. v. Price,, 16-10310 (5th Cir. 03/07/2017)

The court held that the Department of Health and Human Services' definition of a term left undefined by Congress in the Medicare reimbursement schedule was not arbitrary and capricious. The Medicare Rural Hospital Flexibility Program provides a special reimbursement for certain rural facilities that serve Medicare beneficiaries. A hospital qualifies for the reimbursement if, among other things, it is a certain distance from other facilities, using "secondary roads." Because Congress did not define "secondary roads," the Centers for Medicare and Medicaid Services, the agency within DHHS charged with administering Medicare, defined it in a manual. Baylor County Hospital's application was denied because, using the definition of "secondary roads" in the manual, it was not sufficiently distant from another facility. This decision was affirmed by an administrative law judge, the DHHS appeals board and the district court. The court held that the definition was entitled to deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944), which affords deference to an agency's interpretation of a statute it administers, if that interpretation reflects that the agency thoroughly considered the relevant issues, its reasoning was valid, and was consistent with earlier and later pronouncements. Reviewing the agency's decision-making process and analysis, the court held that the interpretation satisfied this criteria, and was thus entitled to deference. For the same reasons, it held that the DHHS' interpretation was not arbitrary and capricious. Baylor County Hosp. Dist. v. Price, 5th U.S. Circuit Court of Appeals, No. 16-10310, 3/7/17

16-10310
EDITH H. JONES, CIRCUIT JUDGE

United States Court of Appeals, Fourth Circuit

Beltran v. The State of Texas, 04-15-00410-CR (4th COA. 03/08/2017)

Appellant John Beltran was sentenced to six years for sexual assault of a child, known to the court as S.O. The child's mother testified she arranged for Beltran to have sex with S.O., starting when the girl was 15, in exchange for cocaine. Appellant challenged the sentence on appeal on grounds that the trial court improperly allowed evidence that he was a drug dealer, that the trial court improperly limited his cross-examination of S.O., and that the evidence was insufficient to support the indictment. On the first issue, the court allowed the state to elicit testimony that appellant sold drugs, and appellant argued the state cannot present evidence of other crimes, except for other sexual crimes, under Tex. Code Crim. Pro. art. 38.37. The court found that the state can enter evidence of other crimes when the other crime is part of the same transaction as the charged crime, such that the charge crime would make little sense without knowledge of the other crime. The court also found that evidence of drug dealing was necessary here "because Beltran's drug dealing was so intertwined with his sexual assault of S.O." Thus, it overruled this issue. On the second issue, appellant argued the court improperly prevented him from asking S.O. about theft charges against her. He sought to use this testimony under Davis v. Alaska (415 U.S. 308) to show she had motive to lie to the police. However, the court found appellant presented no evidence of a plea deal in exchange for testimony against appellant, and therefore Davis did not apply. The court overruled this issue. On the insufficient evidence issue, appellant argued S.O. was too vague in her description of the underlying acts to convict, but the court held a reasonably jury could have resolved any inconsistencies in S.O.'s favor. Having overruled all three issues, the court affirmed the trial court's judgment. John Beltran v. The State of Texas, San Antonio Court of Appeals, Case No. 04-15-00410-CR, 3/8/17.

04-15-00410-CR
PATRICIA O. ALVAREZ, JUSTICE

Court of Appeals of Texas, Fourteenth

Reagins v. Walker, 14-15-00764-CV (TexApp Dist 03/07/2017)

Appellant Billy Ray Reagins and Sheila Walker both filed to modify the trial court's 2011 child support order for their child. In a trial that neither appellant nor his attorney attended, Walker testified that he gave her no documentation about his salary, that she learned online that he is a petroleum engineer with a master's degree, that someone in his position with his experience would make a minimum of $127,000, and that he has two other minor children who attend private school. The court modified its child support order and required appellant to pay $1,534 a month, to pay $3,068 in retroactive child support, and to provide health insurance for the child. He appealed, challenging only the court's calculations and claiming ineffective assistance of counsel. The court found that Walker did not provide sufficient evidence of appellant's salary to calculate his net resources. She did not testify as to his employer, his job description, whether he works full-time or part-time, or even which Internet search engine she used. "The defect in this testimony is not the fact that it was based on Internet research. The problem here is that Walker merely speculated regarding what Reagins might make based on general information she obtained on the Internet," the court stated. Furthermore, appellant's failure to appear did not function as "an implied confession," pursuant to Stoner v. Thompson (578 S.W.2d 679). The court also overruled appellant's challenge on ineffective counsel grounds, finding that he cited to criminal cases and that civil litigants generally are not guaranteed effective assistance of counsel. The court reversed and remanded as to the calculation of appellant's child support obligation, and affirmed the remainder of the trial court's judgment, which appellant did not challenge. Reagins v. Walker, Houston 14th Court of Appeals, Case No. 14-15-00764, 3/7/17.

14-15-00764-CV
MARTHA HILL JAMISON JUSTICE

United States Court of Appeals, Fourth Circuit

E-Learning v. AT&T Corp., 04-16-00291-CV (4th COA. 03/02/2017)

Appellant E-Learning LLC, a software company doing business as BDG, sued AT&T for breach of contract and related claims. BDG and its owners, Roger and Judith Grant, had done business for years with AT&T. In 2013, the Grants proposed a project and began working on it based on feedback from their main contact at AT&T. Several months later, however, AT&T informed appellant it would not pursue the project. The Grants invoiced AT&T, which did not pay because no contract was signed. Appellant sued, and AT&T moved for traditional and no-evidence summary judgment. The court granted both motions, entering a take-nothing judgment against appellant. On appeal, appellants argued the court abused its discretion by excluding several pieces of evidence. Appellants also challenged the grant of traditional summary judgment and the trial court's denial of a motion for a new trial. The court held that the trial court properly excluded Roger Grant's affidavit because it was a sham affidavit made solely to survive summary judgment. The court found that the affidavit had several material contradictions with Grant's deposition testimony, notably that he stated in his deposition that AT&T was never bound to accept the project but stated in his affidavit that the company was under contract to do so. The court upheld the exclusion of other evidence of procedural grounds. The court also held the grant of traditional summary judgment was proper because none of appellant's grounds had merit. On appellant's breach of contract claim, the court found that AT&T conclusively showed through Grant's deposition testimony that it did not accept the contract; the other grounds were found meritless for lack of evidence. Lastly, the court overruled appellant's challenge to the denial of a new trial because it relied on the same arguments as its other challenges. The court affirmed the trial court's judgment. E-Learning, LLC v. AT&T Corp., San Antonio Court of Appeals, Case No. 04-16-00291-CV, 3/2/17.

04-16-00291-CV
KAREN ANGELINI, JUSTICE

Court of Appeals of Texas, First District

Ayele v. Jani-King, 01-16-00007-CV (TexApp Dist 02/28/2017)

Appellant Meseret Ayele, who had a franchise agreement to operate a Jani-King cleaning franchise, sued Jani-King for breach of contract. Jani-King moved for summary judgment, with a hearing set for Sept. 7, 2015. Appellant moved for a continuance, seeking more time for discovery and because appellant's counsel had filed a vacation letter notifying the court he would be on vacation the week of Sept. 7-11. On Sept. 10, the court granted a continuance, placing the matter on its submission docket for Oct. 5, and when that date passed with no response from counsel, the trial court granted default summary judgment on Oct. 13. When counsel learned of the decision on Nov. 2, appellant moved to vacate the judgment and for a new trial. The trial court denied the motion, and an appeal followed on grounds of abuse of discretion. The court found that when a party opposing summary judgment does not receive notice of submission date, a trial court should set aside a default judgment under Craddock v. Sunshine Bus Lines, Inc. (133 S.W.2d 124) if the lack of response is not due to indifference or an intentional act. The court also found that neither the trial court nor Jani-King could show that it notified counsel of the submission date, and therefore Craddock applies. The court rejected Jani-King's argument that counsel's failure to monitor the proceedings amounted to conscious indifference. The court found that conscious indifference is more than negligence, and that counsel only needs an uncontroverted excuse, such as it had in this case, to negate conscious indifference. The court reversed and remanded the case. Ayele v. Jani-King, Houston 1st Court of Appeals, Case No. 01-16-00007-CV, 2/28/17.

01-16-00007-CV
JANE BLAND JUSTICE

Court of Appeals of Texas, First District

J&J Container Manufacturing, Inc., v. Cintas-R U.S., 01-16-00432-CV (TexApp Dist 03/02/2017)

Cintas-R U.S. won a default judgment for more than $19,000 against appellant J&J Container Manufacturing. Appellant only became aware of the judgment when a constable collected the money, and it appealed on grounds that the judgment was void due to lack of service. The appeals court remanded, at which point Cintas filed notice of nonsuit, and the trial court dismissed the case while Cintas kept the $19,000. Appellant then filed for a new trial, which the court denied, and another appeal followed. Appellant argued the trial court abused its discretion by dismissing the suit without requiring Cintas to return the money, and by denying the new trial motion. The court found that appellant asserted in its motion that Cintas could not keep the money unless it prevailed on its breach of contract claim. The court held that because this motion therefore notified the trial court that appellant sought a return of its money, the trial court abused its discretion by denying the motion for a new trial. The court reversed and remanded, directing the trial court to "consider J&J's right to restitution and any other claims raised by the pleadings." J&J Container Manufacturing, Inc., v. Cintas-R U.S., Houston 1st Court of Appeals, Case No. 01-16-00432-CV, 3/2/17.

01-16-00432-CV
REBECA HUDDLE JUSTICE

Court of Appeals of Texas, Fourteenth

Stepherson v. The State of Texas, 14-15-00722-CR (TexApp Dist 02/28/2017)

Appellant Stepherson was convicted of manslaughter and challenged the sufficiency of the evidence to support his conviction for manslaughter and the determination that he used his hands as a deadly weapon. Appellant asserted that the state failed to present evidence from which a rational juror could infer that he was aware of a substantial and unjustifiable risk of death to the victim and consciously disregarded that risk. However, in light of evidence of witnesses described as yelling at appellant to stop, significant injuries to the victim's face and head, a jury could reasonably have concluded that appellant consciously disregarded a known substantial and unjustifiable risk of causing the victim's death, the court held. Appellant's post-attack statements indicating that he only meant to fight the victim, not to kill him, do not negate this evidence. The court held a jury is not prevented from looking at the same evidence and concluding that it supports a finding of reckless, not intentional, conduct. Second, appellant challenged the jury's finding that he used his hands as a deadly weapon. Noting that a deadly weapon is anything that in the manner of its use or intended use is capable of causing death or serious bodily injury, the court held that the evidence was sufficient for a reasonable jury to conclude that manner and use of appellant's hands caused the victim's deadly injuries. Accordingly, the court affirmed. Stepherson v. State of Texas, 14th Court of Appeals, No. 14-15-00722-CR, 02/28/2017

14-15-00722-CR
MARTHA HILL JAMISON JUSTICE

Court of Appeals of Texas, Thirteenth

Burlington Resources Oil & Gas Co. LP v. Texas Crude Energy LLC, 13-16-00082-CV (TexApp Dist 02/23/2017)

Appellant Burlington Resources Oil & Gas Company entered an agreement with Texas Crude Energy to develop a shale field. The agreement provided for royalties to Texas Crude when Texas Crude assigned future leases to appellant. Appellant paid the royalties, but also deducted post-production costs such as transportation and processing from the royalty calculation. Texas Crude sued, both sides moved for summary judgment, and the trial court granted Texas Crude's motion and denied appellant's, prompting an appeal. The court found that while royalties typically bear post-production costs, the parties can modify this rule by agreement. Relying on Chesapeake Exploration LLC v. Hyder (483 S.W.3d 870), the court found that the parties modified the rule here. As in Hyder, the royalty agreement here included "cost-free" language, in this case stating that appellant would deliver royalty interests to Texas Crude "free and clear of all development, operating, production and other costs." Although the underlying agreement did not provide for such "cost-free" royalties, the court found that when the terms of an instrument do not align with the underlying contract, the language of the instrument controls under the merger doctrine. The court rejected appellant's argument that language in the instrument specifying that the royalties are delivered "at the well" necessarily meant that the royalties included post-production costs. The court found that under Hyder, even when royalties are delivered at the well, parties are free to allocate costs as they see fit. The court affirmed the trial court's judgment. Burlington Resources Oil & Gas Co. LP v. Texas Crude Energy LLC, Corpus Christi-Edinburgh Court of Appeals, Case No. 13-16-00248-CV, 3/2/17.

13-16-00248-CV
DORI CONTRERAS JUSTICE

Supreme Court of Texas

BP America Production Company v. Laddex, Ltd., 15-0248 (TexApp Dist 03/03/2017)

The court held that an oil-and-gas lease did not violate the rule against perpetuities. The court held, however, that the jury was improperly instructed on the relevant time period for assessing whether the lease was profitable, requiring a new trial. BP America acquired a 1971 lease with a primary term of five years and "as long thereafter as oil or gas is produced from said land hereunder." Beginning in August 2005, production slowed significantly for approximately 15 months. In November 2006, the well resumed producing in quantities comparable to those before the slowdown. In March 2007, the lessors entered into a separate lease with Laddex, covering the same property as the BP lease. Laddex then sued BP, alleging that the BP lease had terminated for failure to produce in paying quantities in 2005 and 2006. BP argued that Laddex lacked standing because the Laddex lease violated the rule against perpetuities and was therefore void. The trial court denied the motion, and the case proceeded to a jury trial on the merits. The jury answered "yes" to the charge asking if the BP well "failed to produce in paying quantities '[f]rom August 1, 2005 to October 31, 2006.'" The trial court accordingly decreed that the BP lease had lapsed and granted Laddex possession of the pertinent mineral estate. The intermediate appellate court held that the Laddex lease was not subject to the rule against perpetuities. It agreed with BP, however, that the trial court erred in limiting the jury's paying-production inquiry to the specific 15-month period in which production slowed. On appeal, the court concluded that the Laddex lease was susceptible to two interpretations: it might convey the lessors' then-present possibility of reverter, which would not violate the rule against perpetuities, or it could be construed as conveying the reversionary interest at the expiration of the BP lease, which violated the rule. Because Texas law favors a construction that renders a lease valid, the court held that the lease did not violate the rule against perpetuities. The court agreed with the intermediate appellate court that the jury was improperly instructed. It held that, when a jury is considering whether a well has slowed production sufficiently enough that the lease is terminated, evidence of profitability before, during and after the slowdown is relevant. It accordingly remanded the case for a new trial. BP America Production Company v. Laddex, Ltd., No. 15-0248, Texas Supreme Court, 3/3/17

15-0248
DEBRA H. LEHRMANN JUSTICE

Court of Appeals of Texas, Eighth District

In the Interest of A.M.R., 08-16-00083-CV (TexApp Dist 02/28/2017)

Appellant Ashley S. Buntyn sought to move with her child, A.M.R., from El Paso County to Virginia. Although her and the child's father, Juan Rivas, had joint conservatorship, Buntyn had the exclusive right to designate A.M.R.'s primary residence. Rivas petitioned to change the parent-child relationship to restrict A.M.R.'s primary residence to El Paso County. The court orally granted the request, and a later written order stated that the restriction shall be lifted if Rivas does not reside in El Paso County. Because Rivas had always lived in a neighboring county in New Mexico, he moved for a nunc pro tunc judgment modifying the order – but did so more than a month after the written order was issued. The judge granted the motion, stating that he had not ordered the additional condition orally. On appeal, appellant argued that the judge issued the nunc pro tunc judgment after losing his plenary powers, and that the judgment correctly a judicial error rather than a clerical one. The court found that a court has plenary powers to modify a judgment for 30 days after it is signed under Tex. R. Civ. Pro 329b(d), but that it may use a judgment nunc pro tunc to correct clerical errors at any time under Tex. R. Civ. Pro. 316 and 329b(f). The court also found this judgment corrected a clerical error, because the record showed that the oral judgment did not stipulate that the restriction on A.M.R.'s residence was conditioned on Rivas living in El Paso County, and also that neither party disputed this fact. Thus, the court found that the trial court properly corrected a clerical error with a judgment nunc pro tunc, and affirmed that judgment. In the Interest of A.M.R., El Paso Court of Appeals, Case No. 08-16-00083-CV, 2/28/17.

08-16-00083-CV
YVONNE T. RODRIGUEZ, JUSTICE

Supreme Court of Texas

M&F Worldwide Corp., et al. v. Pepsi-Cola Metropolitan Bottling Co., Inc., 15-0083 (TexApp Dist 03/03/2017)

The court held that Texas courts lacked specific jurisdiction over the nonresident "Mafco" defendants. It reversed the lower courts' contrary rulings and remanded the case for a determination whether the plaintiff (Pepsi) could show that Texas had general jurisdiction over the nonresident defendants. The Mafco defendants entered into a contract with Texas-based defendants for the purpose of resolving certain disputes between them. Pepsi, a nonresident, was not a party to that agreement. It alleged that the agreement affected a contract between Pepsi and the Texas-based defendants, and sued the Texas-based and Mafco defendants for fraudulent transfer, tortious interference, and conspiracy. To show jurisdiction, Pepsi alleged that Mafco defendants traveled to Texas to negotiate with the Texas-based defendants, and that their subsequent agreement required substantial performance in Texas. After both the trial court and the intermediate appellate court rejected the Mafco defendants' arguments that there was no specific jurisdiction, they appealed to the Texas Supreme Court. The court acknowledged that the Mafco defendants had allegedly twice traveled to Texas to discuss the plan that ultimately led to the lawsuit, and that they exchanged "hundreds of emails and telephone calls" with the Texas-based defendants. It held that this conduct was insufficient to establish specific jurisdiction over Mafco defendants because there was no link between the Texas-based conduct and the torts in the case: "the nature of the fraudulent-transfer and tortious-interference claims here demonstrates that they do not arise from the Plan C negotiations in Texas, even if the evidence supports a finding that, during those negotiations, the Mafco defendants 'planned' to later commit such tortious conduct. The transactions giving rise to those torts simply did not occur in Texas." The court also rejected Pepsi's argument that, because a Texas-based company performed certain of the functions required by the prior agreement, that conferred jurisdiction over the Mafco defendants. It reasoned that, because there was no allegation showing that Mafco defendants selected this company to perform these administrative functions, they could not reasonably anticipate being hailed into Texas based upon this limited fact. The court acknowledged that Pepsi alleged there was also general jurisdiction over Mafco defendants. Because the trial court had not reached this issue, it remanded the case for the lower court to assess general jurisdiction in the first instance. M&F Worldwide Corp., et al. v. Pepsi-Cola Metropolitan Bottling Co., Inc., No. 15-0083, Texas Supreme Court, 3/3/17

15-0083
DEBRA H. LEHRMANN JUSTICE

United States Court of Appeals, Fifth Circuit

USA v. Julie Grant, 15-10962 (5th Cir. 03/01/2017)

After filing five bankruptcy proceedings, appellant was indicted and charged with four counts of bankruptcy fraud under 18 U.S.C. §152(3). The district court denied appellant's motion to dismiss the charge and proceeded the matter to jury whom found her guilty of counts two through four for failure to disclose prior filings and all social security numbers used. On appeal, appellant challenged the district court's failure to dismiss the superseding indictment as legally deficient, the sufficiency of the evidence, and the decision to use the perjury guidelines for sentencing. The court affirmed holding the superseding indictment was not defective as it alleged every element of defendant's offense and thereby provided her with sufficient notice to "intelligently consider [her] defense or plea." In addition, any surplusage of language in the indictment was cured by the jury instructions and was a harmless error in language. Further, the court held the government presented sufficient evidence from which the jury could have inferred she committed the charged offense. Finally, the court concluded the district court did not err in using the perjury sentencing guidelines as appellant's conduct more closely aligned with perjury as she was not prosecuted for defrauding creditors, rather for making false statements to the court. Accordingly, the court found no reversible errors and affirmed the district court's judgment. U.S. v. Julie Grant, Fifth Circuit, Case No.: 15-10962, 03/01/2017

15-10962
STEPHEN A. HIGGINSON, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

USA v. Thomas Lucas, Jr., 15-41229 (5th Cir. 02/27/2017)

Appellant was convicted on seven counts of wire fraud under 18 U.S.C. §1343 for payments wired as part of an investment scheme whereby about 280 people had invested $47 million based on fraudulent information, resulting in a loss of over $19.6 million. Appellant was further convicted of one count of making false statements to the FBI under 18 U.S.C. §1001 and was sentenced to 210 months' imprisonment. On appeal, appellant claimed error in two evidentiary rulings and the denial of a new trial. Finding no reversible error, the court affirmed holding evidence that appellant met his "acquaintance" at a methadone clinic was not prohibited by Rule 404(b) as such rule only covered extrinsic evidence. The court noted that such information was background information which established the connection between, and inextricably intertwined, the person appellant claimed to be his source of information in the fraudulent scheme. Further, the court affirmed denial of a new trial holding appellant failed to provide enough evidence that he had done the requisite due diligence of uncovering new material and that any new evidence was also immaterial to appellant's convictions. Finally, the court concluded that although a summary of deposition testimony was admitted in error, such error was not plain error or that the court was "derelict in countenancing it." U.S. v. Thomas Lucas, Jr., Fifth Circuit, Case No.: 15-41229, 02/27/2017

15-41229
JERRY E. SMITH, CIRCUIT JUDGE

Court of Appeals of Texas, First District

Ayele v. King, 01-16-00007-CV (TexApp Dist 02/28/2017)

A citizen was entitled to compensation for attorney fees expended when he pursued and won access to information under the Texas Public Information Act. Here, the city appealed the trial court's award of attorney fees, claiming that the citizen's attorney fee claim became moot when the city voluntarily provided him with the documents after the trial court ordered it to, but before the trial court awarded fees. The court disagreed, noting that a case becomes moot if a justiciable controversy ceases to exist or the parties lack a legally cognizable interest in the outcome. Here, the city continued to challenge the trial court's ruling after it disclosed the documents, and indeed continues to challenge the trial court's award of attorney fees based on governmental immunity. The unresolved issues present a live controversy, and the claim is not moot. The city further contended that is was not a proper party to the action and that governmental immunity bars the assessment of attorney fees against it. Noting that governmental immunity bars suits for money damages and that a mandamus suit seeking documents under the PIA is not a suit for money damages, the court held that governmental immunity does not bar attorney fees here. Further, the citizen's failure to name the public information officer individually does not give rise to governmental immunity. The proper party for a mandamus claim may be either the city or the public information officer, the court held. Accordingly, the court affirmed. Houston v. Kallinen, First District Court of Appeals, No. 01-12-00050-CV, 02/28/2017

01-12-00050-CV
JANE BLAND JUSTICE

Court of Appeals of Texas, Thirteenth

Housing & Community Services, Inc. v. Texas Windstorm Insurance Assoc., 13-15-00560-CV (TexApp Dist 03/02/2017)

Appellant Housing and Community Services owned a property insured by Texas Windstorm Insurance Association. In May 2013, appellant filed a claim for hail damage that happened just over a year earlier, which TWIA denied because appellant missed the one-year deadline to file. Appellant sued for wrongful denial of coverage, arguing TWIA was not prejudiced by the 13-day delay in filing the claims and therefore should pay pursuant to PAJ v. Hanover Insurance Co. (243 S.W.3d 639). Both sides moved for summary judgment. The court granted TWIA's motion and entered a take-nothing judgment against appellant. An appeal followed, presenting a question of first impression: whether TWIA may deny coverage of an untimely claim even if it is not prejudiced by the untimely filing. The court found that PAJ and other case law did not apply because TWIA was created by "mandatory and exclusive" statute (The Texas Windstorm Insurance Association Act, Tex. Ins. Code §2210), which supersedes the common law. Furthermore, the unambiguous text of the act provides for a one-year filing period and resolves any conflicts between the act and other law in favor of the act. The court affirmed the trial court's judgment. Housing & Community Services, Inc. v. Texas Windstorm Insurance Assoc., Corpus Christi-Edinburg Court of Appeals, Case No. 13-15-00560-CV, 3/2/17.

13-15-00560-CV
GINA M. BENAVIDES JUSTICE

United States Court of Appeals, Fifth Circuit

Turner v. Lieutenant Driver, 16-10312 (5th Cir. 02/27/2017)

The court held that police officers were entitled to qualified immunity on Turner's First Amendment claim arising from his detention for video recording a police station from a public sidewalk because there was no clearly established right to record at the time of the detention. The court also held that the officers had qualified immunity from Turner's claim that his detention violated the Fourth Amendment because, given the totality of the circumstances, their conduct was not "plainly incompetent." However, the court held that the offices had no immunity for handcuffing Turner because they lacked probable cause. Turner was videotaping the Fort Worth police station from a public sidewalk when two officers asked him for identification. When he refused to provide his identification, the officers handcuffed Turner, took his camera and placed him in the back of a patrol car. A police lieutenant subsequently arrived on scene, returned his camera and allowed Turner to leave. Turner sued the officers and lieutenant under §1983, alleging they violated his First, Fourth and Fourteenth Amendment rights. The district court granted their motions to dismiss on the basis of qualified immunity. Turner appealed. With respect to Turner's First Amendment claim, the court upheld the immunity because "there was no clearly established First Amendment right to record the police at the time of Turner's activities." Going forward, however, it established a right to record the police, subject to reasonable time, place and manner restrictions. With respect to Turner's Fourth Amendment detention claim, the court agreed that the officers were entitled to immunity because, given the totality of the circumstances, including recent attacks on law enforcement, it was not unreasonable for the police to question and detain Turner. The court also agreed that the lieutenant's conduct was appropriate under the circumstances, entitling him to immunity. However, the court held that, when the officers handcuffed Turner and placed him in the rear of a police vehicle, that was tantamount to an arrest and, because the officers lacked probable cause to arrest Turner, they were not entitled to immunity. Turner v. Lieutenant Driver, No. 16-10312, United States Court of Appeals for the Fifth Circuit, 2/27/17

16-10312
WIENER, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

USA v. Alay, 15-41125 (5th Cir. 03/03/2017)

The court affirmed the district court's enhancement of the criminal defendant's sentence because of a prior rape conviction, concluding that the rape conviction qualified as a "forcible sex offense" allowing enhancement under the federal Sentencing Guidelines. Alay pled guilty to illegal reentry. He had previously been deported for a rape conviction committed in California. The Sentencing Guidelines provide that, if a person is deported for a "crime of violence," which is defined to include "forcible sex offenses," a subsequent conviction for illegal reentry can be increased or "enhanced." As such, the district court accepted the probation officer's recommendation that Alay's sentence should be enhanced. On appeal, Alay argued that the California rape statute made convictions possible with only a negligent mens rea, while the Sentencing Guidelines required a more culpable mental state, thus rendering enhancement impermissible. The court disagreed. It first noted that the "crime of violence" definition in the Sentencing Guidelines specifically included "forcible sex offenses" within its definition. It then held that the Sentencing Guideline definition of "forcible sex offenses" was broad and contained no requirement of means rea. It then considered the California statute under which Alay was convicted, and found that its elements matched those in the Sentencing Guidelines. Finally, the court rejected Alay's reliance upon decisions construing other crimes, or other statutes, reasoning that they were inapplicable to this Sentencing Guideline provision and definition. The court accordingly affirmed the sentence. U.S. v. Alay, No. 15-41125, United States Court of Appeals for the Firth Circuit, 3/3/17

15-41125
JERRY E. SMITH, CIRCUIT JUDGE

Court of Appeals of Texas, Sixth Appellate District

BP Automotive LP v. RML Waxahachie Dodge, 06-16-00021-CV (TexApp Dist 03/02/2017)

Appellant BP Automotive agreed to sell its Chrysler franchise to RML Dodge, conditioned on RML leasing the land from appellant's sibling company, BPRE. Because of the ripple effects of parent Chrysler Motors' bankruptcy later that year, the sale never closed and the lease never came into effect. Several rounds of litigation followed, including a bankruptcy by BPRE, after which the trial court granted several motions for summary judgment by RML, mostly based on issue preclusion of claims adjudicated in the bankruptcy. On appeal, the court held that issue preclusion applied to certain claims because appellant and BPRE were in privity in the bankruptcy, because the two shared the same corporate parents and BPRE advanced the same underlying issues in its bankruptcy as appellant did in other litigation. The court rejected appellant's argument that limited special circumstances overriding issue preclusion applied to this case. Appellant argued the circumstances should apply when issue preclusion would be unfair, but the court found that the Texas Supreme Court only recognizes these exceptions when such a ruling would be unfair and fail to achieve the purposes of judicial efficiency and inconsistent judgments. However, the court also found that the bankruptcy court did not make any fact findings that would preclude appellant's quantum merit, unjust enrichment, and tortious interference claims. It also found that the trial court did not give appellant proper notice of the hearing at which it considered RML's motion for summary judgment on the tortious interference claim. The court affirmed in part and reversed in part, remanding the claims for quantum merit, unjust enrichment, and tortious interference. BP Automotive LP v. RML Waxahachie Dodge, Texarkana Court of Appeals, Case No. 06-16-00021-CV, 3/2/17.

06-16-00021-CV
BAILEY C. MOSELEY JUSTICE

United States Court of Appeals, Fifth Circuit

Vetter v. McAtee, 15-20575 (5th Cir. 03/01/2017)

The parties briefly entered into an unwritten partnership agreement to market to hospitals a new kind of whiteboard that improved hospital staff's ability to communicate with patients. After the dissolution of the partnership, appellant initiated the underlying suit claiming breach of the partnership agreement; appellee counter-claimed for breach of the same agreement. Appellee's corporation further initiated a separate lawsuit for trademark and copyright infringement, cyber piracy, false advertising, and civil conspiracy. Following consolidation of the suits and a jury trial, a judgment resulted which was adverse to both parties and each have subsequently appealed. The court affirmed holding the jury instruction as written correctly stated the law for abandonment through non-use of a trademark and that the evidence supported the jury's conclusion that appellant defrauded appellee and abandoned her trademark. Moreover, the court affirmed appellee's adverse judgment of breach of the partnership agreement as a reasonable jury could have found that appellant personally suffered damages as a result nor was there error in the trial court's subsidiary factual finding that interpleaded funds were partnership funds. Accordingly, the judgment of the trial court was affirmed. Vetter v. McAtee, Fifth Circuit, Case No.: 15-20575, 03/01/2017

15-20575
PATRICK E. HIGGINBOTHAM, CIRCUIT JUDGE

Court of Appeals of Texas, Thirteenth

Banker v. Banker, 13-15-00385-CV (TexApp Dist 03/02/2017)

Kay and John Banker divorced. The court split the marital estate 55 percent for Kay, while also allowing John to retain ownership of his livestock business (ECL), multiple vehicles and trailers titled in his name, and goods in his possession. The court also entered a judgment of $455,000 against John to offset the assets he kept. Kay appealed from the divorce decree on several grounds. The court overruled her first issue, that the trial court incorrectly assessed the value of certain assets. The court found that John was allowed to invoke the property-owner rule to testify about the value of his business because of his longtime ownership and experience; that the trial court properly rejected Kay's only evidence of ECL's good will value; and that the trial court's assessment of the value of John's vehicles was proper because it was between John's estimate and Kay's higher estimate. The court allowed Kay a small remittitur for a bank account that was improperly valued, but rejected Kay's argument that the overall division was manifestly unfair because it relied on the cumulative value of all assets, including those the court found were properly valued. The court rejected Kay's issue that she should be granted a new trial due to the two-year delay between the start of trial in April 2013 and the entry of final judgment in 2015. The court found that Kay's evidence of changing property values in that time was not "newly discovered evidence," and that if the court had entered judgment sooner, the judgment would be the same yet property values still would have changed afterward. The court rejected Kay's third issue, that the trial court failed to account for John's sale of six horses, finding that evidence of a "secret sale" was not credible because the divorce decree accounted for the horses as part of the division of "goods." The court also rejected Kay's other issues. The court reversed the trial court's judgment "to the extent that it excludes the six horses," conditionally affirmed the court's judgment as to the bank account pending addition of the $4,941 remittitur, and affirmed the judgment in all other respects. Banker v. Banker, Corpus Christi-Edinburg Court of Appeals, Case No. 13-15-00385-CV, 3/2/17.

13-15-00385-CV
NELDA V. RODRIGUEZ

Court of Appeals of Texas, Second District

In Re Roger Eugene Fain, 02-17-00032-CV (TexApp Dist 03/02/2017)

Pro se Relator Roger Eugene Fain was sentenced to life for murder in 2007. After an unsuccessful appeal and an unsuccessful motion to compel DNA testing in 2010, Relator moved again for DNA testing in 2013. The trial court granted this motion in 2015, on remand from the appeals court, and a state lab took a DNA sample. With the results still pending as of October 2016, Relator filed a writ of mandamus requesting the appeals court to compel the trial court to compel the state "to be more pro-active" in seeking the results. The appeals court, although noting it had "concerns" about the lengthy delay in obtaining the results, noted that Relator's petition did not request a specific action by the court. With no abuse of discretion to correct, the appeals court held that it lacked mandamus jurisdiction and denied Relator's petition. In Re Roger Eugene Fain, Fort Worth Court of Appeals, Case No. 02-17-00032-CV, 3/2/17.

02-17-00032-CV
SUE WALKER JUSTICE

United States Court of Appeals, Fifth Circuit

USA v. Hector Feliciano Lopez-Monzon, 15-41547 (5th Cir. 03/01/2017)

Appellant was charged with and convicted with four counts to possess with intent to distribute methamphetamine. The government presented evidence that a Freightliner truck, to which appellant admitted to border patrol was owned by him, held a fuel tank with 411.4 kilograms of methamphetamine. Appellant moved for acquittal contending he had no knowledge of the contents within, and did not drive the truck over the United States-Mexican border with an intent to distribute. The district court denied acquittal and the jury found him guilty on counts two (possession with intent to distribute) and four (importing methamphetamine). On appeal, appellant challenged the sufficiency of the evidence only as to the knowledge element of his convictions, arguing that the government failed to prove he knew methamphetamine was concealed in the fuel tank. The court affirmed holding the government presented evidence from which a rational jury could conclude that appellant made inconsistent statements, including the purchase of the Freightliner as well as a second tractor-trailer, travel arrangements, and insurance policies. The court determined a rational jury could infer, given the totality of the circumstances and value of the drug, that appellant had knowledge the fuel tanks contained methamphetamine and intended to import such substance to the United States for distribution. U.S. v. Hector Feliciano Lopez-Monzon, Fifth Circuit, Case No.: 15-41547, 03/01/2017

15-41547
EDITH BROWN CLEMENT, CIRCUIT JUDGE

Court of Appeals of Texas, Thirteenth

Texas Department of Public Safety v. Smith, 13-16-00082-CV (TexApp Dist 02/23/2017)

The Texas Department of Public Safety appealed the trial court's reversal of an administrative decision to uphold the suspension of appellee's driver's license. The Department argued that the court lacked jurisdiction because the driver did not send a copy of the petition of the State Office of Administrative Hearings or obtain a copy of the administrative record. The Department further argued that the trial court erred in finding that it did not need to be served with notice of the final hearing and by finding that the administrative decision was not supported by the evidence. Turning first to the issue of jurisdiction, the court held that although Texas law requires that an appellant from a driver's license suspension send their petition to the State Office of Administrative Hearings, failure to do so does not deprive the court of jurisdiction because there is no clear legislative intent to that effect. Similarly, while the court agreed that the driver's failure to obtain an official copy of the administrative record left the trial court unable to conduct a meaningful review of the administrative decision, this did not deprive the court of jurisdiction. Addressing the issue of notice of the hearing, the court held that the Department was entitled to notice, and its due process rights were violated when the trial court ruled without notice having been given. As it was undisputed that the Department was not notified of the hearing, the trial court abused its discretion by denying the Department's motion for a new trial, the court held. Accordingly, the court reversed and remanded. Texas Department of Public Safety v. Smith, Texas, 13th District, Corpus Christi – Edinburg, No. 13-16-00082-CV, 02/23/17.

13-16-00082-CV
DORI CONTRERAS JUSTICE

United States Court of Appeals, Fourth Circuit

In the Interest of M.T., 04-16-00547-CV (4th COA. 02/22/2017)

Appellant Jocelyn T. lost her parental rights to her son, M.T., after a trial. Several caseworkers with the Texas Department of Family and Protective Services testified that she was seen with the child's father, Timothy W., who had also lost parental rights due to drug use and abusive behavior toward Jocelyn T., despite claiming that she had broken off her relationship with him. They also testified that she had been evicted from her apartment and failed to provide for M.T., and that M.T. was thriving in his foster home. The trial court terminated Jocelyn T.s parental rights, finding it was in the child's best interest, and she appealed on grounds that the evidence was insufficient to support the finding. The appeals court, while noting that evidence of Jocelyn T. frequently visiting M.T. and completing parenting classes weighed in her favor, found that the overall evidence showed that M.T.'s foster placement was in his best interest. It also rejected her argument that the trial court "largely ignored" a long but non-exhaustive list of factors from Holley v. Adams (544 S.W.2d 367) for a best interest finding; the court said nothing prohibited a trial court from forming an opinion based on other factors. The court affirmed the trial court's judgment. In the Interest of M.T., San Antonio Court of Appeals, Case No. 04-16-00547-CV, 2/22/17.

04-16-00547-CV
REBECA C. MARTINEZ, JUSTICE

Court of Appeals of Texas, Fourteenth

In Re S.J., 14-17-00054-CV (TexApp Dist 02/23/2017)

Relator S.J. moved from India to Texas with her child, S.S. to escape an abusive marriage to an alcoholic husband. Mother and child are American citizens; father is a citizen of India. Upon learning that the child was in Texas, father petitioned the court to assume temporary emergency jurisdiction under Tex. Fam. Code §152.204. The court asserted jurisdiction because the child was in Texas and jurisdiction was necessary to protect the child from mistreatment or abuse, and then ordered mother to return the child to India. She filed for a writ of mandamus, arguing the court had no evidence for its finding. The appeals court found that father testified mother was never abusive or violent toward the child, and was a good parent. Instead, the father argued that the mistreatment that gave rise to jurisdiction was the "international abduction" from India. The court found this did not fit the definition of "mistreatment," that father cited no case law supporting his argument, and that there was no evidence that the move "caused the child any mental or emotional injury that resulted in an observable and material impairment in the child's growth, development, or psychological functioning." The court held that because the trial court lacked jurisdiction, its order to return the child to India was void, and it granted conditional mandamus relief directing the court to vacate its order. In Re S.J., Houston 14th Court of Appeals, Case No. 14-17-00054-CV, 2/23/17.

14-17-00054-CV
JOHN DONOVAN JUSTICE

United States Court of Appeals, Fifth Circuit

Alcoa, Inc. v. Nat'l Labor Relations Bd., 15-60848 (5th Cir. 02/22/2017)

The court held that substantial evidence supported the NLRB's decision that Alcoa and a wholly-owned subsidiary (Traco) was a "single employer," and that the companies violated the National Labor Relations Act by denying employees access to Traco's facility and by surveilling handbillers. In late 2010, Traco refused to allow Traco and Alcoa employees to distribute union handbills on Traco property. When a union representative moved across the street, in the public right-of-way, to distribute handbills, a Traco General Manager positioned himself so that any Traco employee wishing to obtain a leaflet would have to pass him. The NLRB filed a complaint alleging that Alcoa and Traco violated the act by refusing access to the Traco facility and by surveilling handbillers. An administrative law judge held that the companies were a "single employer" and that they violated the act by refusing access to the Traco facility and through unlawful surveillance. After the NLRB adopted his recommended order, the companies filed an appeal. With respect to the joint employer issue, the court held that, because there was evidence showing that Alcoa and Traco held themselves out to the public and employees as a single entity, did not deal with each other at arms-length, and centralized control of labor relations, substantial evidence supported the NRLB's finding that the companies constituted a single employer. The court noted that there was no NLRB precedent expressly holding that the employees of one entity have a right of access to the exterior facilities of another entity. It nevertheless agreed with the NLRB that interpreting the act to find such a right was consistent with the statute's policy of protecting employee's rights to collectively pressure their employer. Because the companies did not contest that Alcoa employees had been denied access to the Traco facility or that the Traco general manager positioned himself so that he could see which Traco employees accepted handbills, the court affirmed this aspect of the NLRB's decision and granted the NLRB's cross-application for enforcement of its order. Alcoa, Inc. v. Nat'l Labor Relations Bd., No. 15-60848, 5th U.S. Circuit Court of Appeals, 2/22/17

15-60848
EDWARD C. PRADO, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

Ruiz v. Stephens, 11-70011 (5th Cir. 02/21/2017)

Appellant was convicted and sentenced to death for the murder of Theresa Rodriguez twenty years prior. With less than a month before his execution, appellant asserted that the court erred in determining that the Texas Court of Criminal Appeals had denied his Wiggins claims on the merits rather than based on state procedural grounds. The court affirmed its prior order holding that, as previously explained, the writings of the separate dissenting judges left the court uncertain that its decision was footed in state law. The principles of Michigan v. Long and progeny required that the court resolve the uncertainty in favor of federal jurisdiction. Further, the Supreme Court previously held that "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." The court's holding that his petition was dismissed on the merits necessarily triggered the deferential standard appellant faced under §2254(d); appellant's Wiggins claims had, therefore, run their course and his motion to withdraw the mandate was denied. Rolando Ruiz v. William Stephens, 5th U.S. Circuit Court of Appeals, Case No.: 11-70011, 02/21/2017

11-70011
PATRICK E. HIGGINBOTHAM, CIRCUIT JUDGE

Court of Appeals of Texas, Fourteenth

Arceneaux v. Pinnacle Entertainment, 14-15-00894-CV (TexApp Dist 02/23/2017)

Appellant Roy Arceneaux became disruptive while drinking and gambling at PNK Casino. After he refused a security official's request that he leave, officials subdued him, and he sued for assault. The jury found that PNK assaulted him, that $40,000 would fairly compensate him for his injuries, but also that he was 70 percent at fault. Because he was greater than 50 percent at fault, the court granted PNK's motion for a take-nothing judgment under Tex. Civ. Prac. and Rem. Code §33.001 and §33.002, and an appeal followed. Appellant argued that these provisions didn't apply because the jury's finding that PNK assaulted him obviated the question of whether he was partially at fault. The court found that the unambiguous statute does not have an exclusion for intentional torts, that a 1995 amendment removed the intentional torts exclusion, and that the statute listed certain exceptions but that appellant did not assert any of them. The court also found that a court in Isaacs v. Bishop (249 S.W.3d 100) rejected the argument that Chapter 33 does not apply to the intentional tort of fraud, and that appellant offered no case law supporting his position. The court therefore held that §33.001 and §33.002 applied to appellant's claim, and as such he could not recover damages. The court affirmed the lower court's judgment. Arceneaux v. Pinnacle Entertainment, Houston 14th Court of Appeals, Case No. 14-15-00894-CV, 2/23/17.

14-15-00894-CV
MARC W. BROWN JUSTICE

Court of Appeals of Texas, Fifth

The State of Texas v. T.S.N., 05-15-01488-CV (TexApp Dist 02/22/2017)

The state of Texas appealed a trial court's order granting a criminal defendant's petition for expunction of criminal records related to her arrest and acquittal for aggravated assault with a deadly weapon. The state contended that because the defendant pled guilty to a separate charge of theft, that the trial court erred by granting expunction. Affirming the order of expunction, the court held that an admission of guilt to an offense that does not arise from the same criminal episode as the offense for which the accused is acquitted does not bar an expunction of records for the acquitted offense. Here, defendant had been simultaneously arrested for a current act of aggravated assault and on a warrant for a theft charge that was over two years old. Where one arrest includes offenses for which a defendant could not be charged and tried in the aggregate, expunction stands or falls on each unrelated charge, the court held. Accordingly, the court affirmed. Texas v. T.S.N., Texas, Fifth District Dallas, No. 05-15-01488-CV, 02/22/17.

05-15-01488-CV
DAVID J. SCHENCK JUSTICE

United States Court of Appeals, Fifth Circuit

Cruz v. Abbott, 16-50519 (5th Cir. 02/23/2017)

The Fifth Circuit held that the District Court erred in enjoining enforcement of a Texas statute because the plaintiffs lacked Article III standing. The State of Texas amended its Penal Code to extend liability to persons who, with the "intent to obtain a pecuniary benefit," "knowingly … encourages or induces a person to enter or remain in this country in violation of federal law by concealing, harboring, or shielding that person from detection." Plaintiffs, who alleged they rented residential property without checking immigration status and provided services to low-income individuals, including illegal aliens, sued, alleging that the amendment was preempted by federal immigration law and the Fourteenth Amendment. The plaintiffs sought a preliminary injunction against enforcement of the statute. At a hearing, a state official stated that, based upon the facts in the Complaint, the Texas Department of Public Safety "would not investigate, file criminal charges, or otherwise engage in enforcement activity…" against individuals engaged in the conduct described by the plaintiffs. The District Court dismissed the Fourteenth Amendment claims, but entered a preliminary injunction against enforcement of the statute, reasoning that the plaintiffs' preemption arguments were likely to succeed on the merits. On appeal, the state maintained that the plaintiffs lacked standing because the plaintiffs were not violating the statute and faced no credible threat of prosecution. The plaintiffs argued that because they "shelter persons without regard to immigration status (and therefore could well be harboring illegal aliens) in return for either money (in the case of the landlords) or labor (in the case of the social-service providers)," they faced a credible threat of prosecution. The court disagreed. Reading the statute as a whole, it held that it "requires some level of covertness well beyond merely renting or providing a place to live." The Court also noted that, in prior decisions, it had interpreted the phrase "harbor, shield or conceal" narrowly, and that it was reasonable to assume that the Texas legislature was aware of these decisions when it amended the statute. Finally, the Court referenced the Department of Public Safety's promise of no prosecution and, while noting that it did not bind county prosecutors or local law enforcement officials, reasoned that it "carried some weight." The court noted that Ninth Circuit and Eleventh Circuit had ruled supporting the plaintiffs', but they relied upon language not present in the Texas statute. The court consequently vacated the preliminary injunction and dismissed the case. Cruz v. Abbott, No. 16-50519, 5th U.S. Circuit Court of Appeals, 2/23/17

16-50519
JERRY E. SMITH, CIRCUIT JUDGE

Court of Appeals of Texas, First District

Adrian Aaron Mendez, Jr., v. The State of Texas, 01-15-00187-CR (TexApp Dist 02/23/2017)

Appellant Adrian Aaron Mendez, Jr., after a long night of drinking and drug use, stabbed Jacob Castillo in an altercation. Castillo later died of his injuries. The jury acquitted appellant of murder but convicted on the lesser included charge of aggravated assault and sentenced him to seven years. He appealed on several grounds. First, appellant argued the evidence was insufficient to convict because he was acting in self-defense. The court, reviewing the evidence in a light most favorable to the prosecution, found that while some evidence indicated that Castillo was the aggressor, the state presented enough evidence for a reasonable jury to convict appellant. The court noted that witnesses saw appellant carrying a knife earlier in the evening, that he had told one witness he felt like killing somebody, that he had disposed of evidence including his bloody clothes and the knife used in the stabbing, and that he sought out potential video evidence of the altercation to destroy it. Second, appellant argued that the court caused egregious harm by failing to instruct the jury that self-defense applied to all lesser included charges. The state argued that because appellant raised other defenses, the jury could have acquitted on the murder charge without implicating self-defense, and therefore the court's error was not egregious. The court, however, found that because self-defense was a "vital" issue for appellant, and because the evidence of self-defense was "hotly contested," the errant jury instruction caused egregious harm. The court did not address appellant's third issue, that the court abused its discretion by refusing to admit evidence of Castillo's prior violent acts. The court reversed and remanded the trial court's judgment. Adrian Aaron Mendez, Jr., v. The State of Texas, Houston 1st District Court of Appeals, Case no. 01-15-00187-CR, 2/23/17.

01-15-00187-CR
SHERRY RADACK CHIEF JUSTICE

United States Court of Appeals, Fifth Circuit

USA v. Olson, 16-10507 (5th Cir. 02/20/2017)

After the denial of his motion to suppress, appellant pled guilty to possession with intent to distribute fifty grams or more of methamphetamine and possession with intent to distribute gamma hydroxybutyric acid. On appeal, appellant challenged the denial of his motion and the application of the career-offender sentencing guidelines based on his two prior convictions. The court affirmed holding that appellant waived his right to challenge any nonjurisdictional defects in the criminal proceedings when he pled guilty voluntarily and unconditionally. The court noted this waiver included the right to raise any further objections based on the denial of a motion to suppress. Further, the sentencing was affirmed as appellant's contention that a conviction under §11378 did not qualify as a controlled-substance offense because it criminalized an offer to sell was without merit. The court concluded that a conviction under §11378 required proof of actual or constructive possession of a controlled substance and the intent to sell; accordingly, the district court properly applied the career-offender enhancement based on his two prior convictions of possession of methamphetamine for sale. United States of America v. Roger Harry Olson, II, Fifth Circuit U.S. Court of Appeals, Case No.: 16-10507, 02/20/2017

16-10507

United States Court of Appeals, Fifth Circuit

USA v. Massey, 16-40041 (5th Cir. 02/22/2017)

Appellant, a member of an armed citizen group that patrolled the border between the United States and Mexico, encountered a border patrol agent who seized his firearms. Appellant was subsequently charged with four counts of possession of a firearm by a convicted felon under 18 U.S.C. §922(g). Appellant moved to dismiss on an interstate-commerce theory which argued that that government was required to prove more than just that the firearms had traveled in interstate commerce. The district court denied the motion and found appellant guilty on all counts and issued a 41-month sentence. On appeal, appellant contended there was insufficient evidence to convict him and that he was permitted to have the firearms on the premises of the individual who lived there. The court affirmed holding the evidence was sufficient to show that the firearms had traveled to Texas from Vermont and Croatia, where they were manufactured. Further, the state complied with §922(g)(1) by proving appellant was previously convicted of a felony – here, burglary of a habitation – and that he possessed a firearm that traveled or affected interstate commerce. Accordingly, the conviction was affirmed. United States of America v. Kevin Lyndel Massey, Fifth Circuit, Case No.: 16-40041, 02/22/2017

16-40041
JERRY E. SMITH, CIRCUIT JUDGE

Court of Appeals of Texas, Fourteenth

Gillet v. ZUPT LLC, 14-15-01033-CV (TexApp Dist 02/23/2017)

Appellant Joel Gillet, an employee of energy company ZUPT, sought to force the company to buy out his 45 percent share. He resigned his employment, but not his ownership stake, and left to work at another company, although he did not disclose to ZUPT that he had accepted another job offer. After an appraiser offered varying estimates of the company's worth based on appellant's actions and his refusal to sign a non-compete agreement, appellant sued for oppression and breach of contract. ZUPT counter-sued for various breaches, alleging appellant disclosed confidential information to his new employer. An arbitrator found that ZUPT owed appellant nearly $500,000 for his 45 percent interest in the company, and also that ZUPT was entitled to damages of more than $1.8 million for appellant's breaches. A trial court granted ZUPT's request for turnover and appointment of a receiver, and an appeal followed. In his first issue, appellant argued the trial court erred by ordering turnover without evidence of underlying assets. ZUPT had not presented evidence at trial of appellant's stock ownership, but the appeals court said the trial court is allowed to take judicial notice of its own findings. Here, it found that ZUPT owed appellant a debt for his partial ownership, so this finding served as evidence of an asset – the debt – owned by appellant. The court also found, however, that the trial court abused its discretion to the extent it ordered turnover of any assets other than appellant's partial ownership in the company. The court rejected appellant's second issue, that a charging order is the sole remedy for a judgment creditor seeking to enforce a debt against a member. The court found this rule does not apply when the debt arises from the membership itself. On appellant's third issue, the court found that the turnover order conflicts with the final judgment because it could allow a receiver to collect appellant's ownership stake in ZUPT before compensating him for it, which potentially could diminish the amount he was to receive. The court noted that a final order requiring appellant to be compensated for his stake before the receiver collects it would be proper. The court reversed and remanded the trial court's judgment. Gillet v. ZUPT LLC, Houston 14th Court of Appeals, Case No. 14-15-01033-CV, 2/23/17.

14-15-01033-CV
WILLIAM J. BOYCE JUSTICE

United States Court of Appeals, Fifth Circuit

Starnes v. Wallace, 15-41341 (5th Cir. 02/24/2017)

Appellant worked as a risk manager at Appellee Daybreak Ventures, LLC, a company that employs thousands of individuals to work at nursing homes in Texas. Following information that an employee was not properly compensated, appellant informed the director that appellee was violating the Fair Labor Standards Act. After a year, the dispute was finally settled. Ten days later, appellee laid off five employees, including appellant, purportedly due to financial difficulties. Appellant filed suit asserting claims for retaliation under both the FLSA and §260A.014(b) of the Texas Health and Safety Code, which regulated nursing homes. Appellee moved to dismiss under Fed. R. Civ. Proc. 12(b)(6) and sought a ruling that damages were unavailable. The district court granted the motion in full. Further, the court granted summary judgment finding appellant could not establish a prima facie case as she was not engaged in protected activity or that causation existed. The court reversed in part concluding there was a factual dispute about whether appellant was stepping outside her ordinary role and giving fair notice to appellee that she was asserting rights adverse to it. Moreover, the court found a causal link between her termination and the asserted protected activity. The court affirmed dismissal in part as to claims under §260A.014(b) concluding the state statute did not provide protection to employees reporting FLSA violations. Starnes v. Wallace, 5th U.S. Circuit Court of Appeals, Case No.: 15-41341, 02/24/2017

15-41341
GREGG COSTA, CIRCUIT JUDGE

United States Court of Appeals, Fourth Circuit

City of San Antonio v. Cervantes, 04-16-00569-CV (4th COA. 02/22/2017)

Charles Cervantes, a Bexar County Sheriff's worker, suffered a work-related injury in an accident in a parking lot. A San Antonio police officer hit the car Cervantes was driving, and he sued the City of San Antonio (the appellant) for negligence nearly two years after the accident. Appellant argued its had sovereign immunity because Cervantes failed to properly notify the city and it had no actual knowledge of the injuries, but the trial court denied appellant's plea to the jurisdiction, and an interlocutory appeal followed. The court found that the Texas Tort Claims Act requires that governmental bodies receive notice of a claim within six months of the underlying incident as a condition of waiving immunity. The court noted that an affidavit from the risk manager in the city's claims department showed no record of Cervantes reporting an injury before filing suit. It rejected Cervantes' claim the affidavit was invalid because the manager had not been employed in the position in the entire time since the incident; the court found that the manager had access to records since the time of the incident. The court also found the city had no actual knowledge because police reports at the time indicated no injury and also indicated that police officers asked Cervantes if he was injured. Thus, the court held that the city had no actual knowledge of injury and was not notified of an injury within the statutory six-month timeframe. The court reversed the trial court's judgment and dismissed the suit for lack of jurisdiction. City of San Antonio v. Cervantes, San Antonio Court of Appeals, Case No. 04-16-00569-CV, 2/22/17.

04-16-00569-CV
LUZ ELENA D. CHAPA, JUSTICE

Court of Appeals of Texas, Eighth District

The State of Texas v. Leon, 08-15-00365-CR (TexApp Dist 02/22/2017)

The state of Texas filed this interlocutory appeal of the trial court's order suppressing statements made by a criminal defendant. Here, defendant was arrested following a traffic stop. The issue on appeal was whether the traffic stop escalated into full custody before the defendant made statements claiming ownership of cocaine. The state argued that the statements should not be suppressed because no reasonable person would believe that the defendant had his freedom restrained to a degree objectively commensurate with a formal arrest at the time he was questioned. Disagreeing with the state's view, the court noted that police may place a suspect in the back of a police cruiser as part of an investigatory detention without escalating it into full custody, but only if doing so is limited to what is reasonably necessary to keep officers safe and effect the goal of the stop. Here, the detention was not a trivial one, and the state did not argue that placing the defendant in the back of the cruiser was necessary to effectuate an investigatory or law enforcement purpose. The restraint on defendant's freedom went beyond that associated with an investigatory detention, and because he was in custody, his statements were the product of a custodial interrogation, the court held. Because the defendant was not given Miranda warnings before he was questioned, the trial court properly suppressed his statements. Texas v. Leon, Texas, El Paso, Court of Appeals, No. 08-15-00365-CR, 02/22/17

08-15-00365-CR
YVONNE T. RODRIGUEZ, JUSTICE

Court of Appeals of Texas, Third District

Hegar v. Autohaus LP, 03-15-00427-CV (TexApp Dist 02/24/2017)

The Comptroller's office audited auto dealer Autohaus' 2009 taxes and disallowed certain deductions. Specifically, Autohaus had included labor costs for installing auto parts during repair work on customers' cars as part of its cost of goods sold. Autohaus paid the extra $14,227 in taxes under protest and sued appellant Comptroller Glenn Hegar for a refund. The two sides both filed for summary judgment. Autohaus pointed to Tex. Tax Code §171.1012, which states that cost of goods "includes all direct costs of acquiring or producing the goods" and defines "production" to include installation. Appellant relied on Comptroller Rule 3.588, defining "production" to include "installation during the manufacturing or construction process." The trial court granted Autohaus' motion for summary judgment, agreeing with the auto dealer that the Comptroller cannot modify an unambiguous statute and therefore holding Comptroller Rule 3.588 was unconstitutional. It also granted attorney's fees and costs under the Uniform Declaratory Judgments Act. On appeal, appellant challenged the court's finding that Autohaus was allowed to deduct the cost of installation and argued that its rule is constitutional. The court found that while Autohaus acquired the repair parts as part of its cost of doing business, it did not produce the parts, nor did it install anything onto the parts themselves, and therefore it could not deduct labor costs for installation. The court also held that because the plain language of the statute led to that conclusion, it did not need to reach the question of whether the Comptroller's rule was constitutional. Lastly, it held that the trial court did not have jurisdiction under the UDJA to consider Autohaus' request for attorney's fees and costs. The court vacated the relief granted by the trial court under the UDJA, reversed the rest of the trial court's judgment, and entered a take-nothing judgment in favor of appellant. Hegar v. Autohaus LP, Austin Court of Appeals, Case No. 03-15-00427-CV, 2/24/17.

03-15-00427-CV
MELISSA GOODWIN, JUSTICE

United States Court of Appeals, Fifth Circuit

USA v. Brewer, 15-10866 (5th Cir. 02/17/2017)

Appellants David Lee Brewer and William Eugene Boyd were convicted in separate incidents of bank robbery. Both were sentenced under federal guidelines that added an enhancement for career offenders. The sentencing guidelines allow the courts to impose the career offender enhancement if the offender is 18 or older, the instant crime is a crime of violence, and the offender has at least two prior qualifying felonies. Appellants argued in their combined appeal that they did not fit the definition because bank robbery is not a crime of violence under the guidelines. Specifically, they argued that they were convicted on a definition of "intimidation" that was too broad to fit the guidelines' definition, because the broader definition permitted a conviction without a threat or attempt to use actual force. The court rejected this argument, finding that bank robberies implicitly involve intimidation through a thinly veiled suggestion of "unarticulated reprisal" even when no explicit threat is issued as in United States v. Higdon, 832 F.2d 312, 315. "The kind of 'intimidation' that suffices to put a victim in fear of bodily injury during the course of a bank robbery, and which would in turn allow a defendant to complete such a robbery, is the very sort of threat of immediate, destructive, and violent force required to satisfy the 'crime of violence' definition," the court stated. The court also found that other circuits reached the same conclusion. The court therefore found that bank robbery is a crime of violence under the guidelines and affirmed the trial court's judgment. U.S.A. v. David Lee Brewer, Fifth Circuit, Case No. 15-10866, 2/17/17.

15-10866
EDWARD C. PRADO, CIRCUIT JUDGE

Court of Appeals of Texas, Fourteenth

Straight v. The State of Texas, 14-15-00801-CR (TexApp Dist 02/16/2017)

Appellant attempted to flee the scene upon officer's arrival and command to stop. The officer pulled out his weapon and ordered appellant to turn around. Appellant subsequently complied and was taken into custody. The jury found appellant guilty of evading arrest, with a prior evading arrest conviction; during sentencing, the state presented evidence of appellant's numerous prior misdemeanor and felony offenses. After finding two enhancement paragraphs true, the jury sentenced appellant to five years, six months of incarceration. Appellant contends that the trial court erred in paraphrasing the jury charge to the jury and that he received ineffective assistance of counsel. On appeal, the court admitted that the trial court erred in failing to read the entire charge to the jury, but affirmed the sentence as appellant failed to establish that he was egregiously harmed by such error. Further, appellant lacked authority to show that the trial judge's oral charge controlled over the written charge provided to the jury. As to each of his ineffective assistance complaints, the court concluded appellant did not demonstrate that his trial counsel's representation fell below an objective standard of reasonableness or that appellant was prejudiced by such representation. Accordingly, the judgment of the trial court was affirmed. Melvin Straight v. The State of Texas, Houston 14th Court of Appeals, Case No.: 14-15-00801-CR, 02/16/2017

14-15-00801-CR
MARTHA HILL JAMISON JUSTICE

United States Court of Appeals, Fifth Circuit

USA v. Diehl, 15-51061 (5th Cir. 02/13/2017)

Appellant David Andrew Diehl, while serving a 50-year sentence for child pornography, had paid only $446 toward his fines, leaving a balance of $1,554. The government filed to obtain $800 from appellant's $1,800 inmate trust account under the Texas Turnover Statute. The district court granted the request, and appellant challenged on two grounds on appeal: 1) The Federal Debt Collections Procedures Act does not allow the government to use the Turnover Statute, and 2) the government cannot touch his trust account because he had faithfully adhered to the Bureau of Prison's Inmate Financial Responsibility Program. On the first issue, the court found that the FDCPA, although imposing a federal standard, does not prohibit the government from using collection mechanisms under state law. The act states that it "shall not be construed to curtail or limit the right of the United States under any Federal law or any State law … to collect any fine, penalty, assessment, restitution, or forfeiture arising in a criminal case." (28 U.S.C. § 3001(b)). The court also found that it had previously allowed the government to use the Texas Turnover Statute as in United States v. Messervey, 182 F. App'x 318, 321. On the second issue, the court found that the Inmate Financial Responsibility Program, a voluntary work program designed to help inmates meet financial obligations such as court fines, did not supersede the court's sentencing order calling for immediate payment of the fines. The court affirmed the trial court's judgment. U.S.A. v. David Andrew Diehl, Fifth Circuit, Case No. 15-51061, 2/13/17.

15-51061
STEPHEN A. HIGGINSON, CIRCUIT JUDGE

Court of Appeals of Texas, Second District

D.A. v. Texas Health Presbyterian Hospital of Denton, 02-16-00148-CV (TexApp Dist 02/16/2017)

Appellants D.A. and M.A.'s child was injured during birth at Texas Health Presbyterian Hospital. Both sides agree that both the mother and child were at risk of injury if medical personnel did not act quickly to extract the child, but they disagree as to whether the injury resulted from the personnel's conduct. Appellants sued the hospital. The trial court granted summary judgment for the hospital, finding that Tex. Civ. Prac. & Rem. Code § 74.153 required appellants to show that the hospital's negligence was "willful and wanton." On appeal, the court considered whether §74.153 applied to this situation. At issue was the phrasing of the statute, which imposes a "willful and wanton" negligence standard "in a suit involving a health care liability claim against a physician or health care provider for injury to or death of a patient arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department." The court considered whether the phrase beginning "immediately following" applied to a hospital emergency department, an obstetrical unit, a surgical suite, or all three. The court first determined that the statute was ambiguous because proper grammar supported more than one reasonable interpretation. Turning to extrinsic factors to resolve the ambiguity, the court found that surrounding statutes in the same code immunized first responders and others who could not know patients med history. One such statute specifically excluded medical facilities, and their agents, that "anticipate remuneration for the services they perform." It also found that discussion in the legislative history focused on procedures immediately following evaluation or treatment in an emergency room. Hence, the court found that the protection in § 74.153, immunizing medical facilities from liability, is only triggered when a patient is first evaluated or treated in an emergency room, which did not happen in the present case. The court held that the willful and wanton standard for negligence did not apply, reversed the trial court's judgment, and remanded the case. D.A. v. Texas Health Presbyterian Hospital of Denton, Fort Worth Court of Appeals, Case No. 02-16-00148-CV, 2/16/17.

02-16-00148-CV
BONNIE SUDDERTH JUSTICE

Court of Appeals of Texas, Seventh District

Walters v. Livingston, 07-15-00146-CV (TexApp Dist 02/15/2017)

Appellant, a former inmate, proceeded pro se alleging appellees substantially burdened the free exercise of his Native American religion by denying him the right to personally smoke a "sacred ceremonial pipe" during religious ceremonies. Appellant argued the modified corrections policy which limited the use of such pipes violated his constitutional rights as well as breached a previously reached compromise and settlement agreement with another inmate. Appellees filed a traditional motion for summary judgment arguing appellant lacked standing to maintain his lawsuit as he was no longer incarcerated, the claims were barred by the statute of limitations, and the corrections ban was not a violation of religious freedom. The trial court granted summary judgment concluding appellant lacked standing and the statute of limitations barred the claims. On appeal, the court affirmed in part holding appellant lacked standing to bring claims under a breach of contract theory as he was not a party to or a beneficiary of the prior compromise and settlement agreement. However, the court reversed in part sustaining appellant's claims for damages or declaratory judgment and appellant's right to pursue his constitutional civil rights causes of action. Finally, the court reversed summary judgment on grounds that the claims were barred by the statute of limitations finding the evidence did not support the purported accrual date of the action and any such claims were within the one-year period under the statute. Mark Walters v. Brad Livingston, Amarillo Court of Appeals, Case No.: 07-15-00146-CV, 02/15/2017.

07-15-00146-CV
PATRICK A. PIRTLE, JUSTICE

Court of Appeals of Texas, Fourteenth

Marullo v. Apollo Associated Services, LLC, 14-16-00125-CV (TexApp Dist 02/16/2017)

Plaintiff Marullo sued his former employer for breach of a 2004 employment contract and promissory estoppel. The trial court dismissed the suit based on a forum selection clause in a 2014 contract between Marullo and the employer's successor company. On appeal, Marullo argued that there is nothing in the later contract or in Texas contract law that makes the 2014 contract's forum selection clause retroactively applicable to the 2004 contract. Noting that the parties did not cite any Texas cases on the issue of retroactively applying a forum selection clause, the court turned to case law regarding arbitration clauses for guidance. Courts generally do not retroactively apply arbitration clauses where the clause is limited to claims arising under "this agreement," but will retroactively apply them where the arbitration clause is not so limited, the court said. Here, the forum selection clause applied to any suit related to the 2014 contract "or arising from, related to, or otherwise connected with, any aspect of Contractor's employment, whatsoever," where "CONTRACTOR" is used throughout the contract to mean Marullo. Since Marullo's claims arise from his employment, the forum selection clause applied, and the court affirmed. Marullo v. Apollo Assoc. Servs., LLC, Texas, 14th Court of Appeals, 2/16/17.

14-16-00125-CV
KEN WISE JUSTICE

Court of Appeals of Texas, Fourteenth

Duradril, L.L.C. v. Dynomax Drilling Tools, Inc., 14-14-00945-CV (TexApp Dist 02/16/2017)

The case arose from an oral agreement to purchase assets between a drilling manufacturer and appellant, a drilling equipment distributor. When the manufacturer discovered that some of the assets transferred by the distributor were encumbered by liens, it sued the distributor and its owner for breach of contract. The distributor filed counterclaims, alleging fraud, tortious interference, and conversion, among other claims. At trial, the jury found that the parties had created an asset purchase agreement and that the distributor had breached the agreement because some of the assets transferred were "free and clear" of debt as agreed, and rejected the distributor's counterclaims. On appeal, appellant argued that the manufacturer did not have the capacity to sue in Texas because it never registered in the state as required under §9.051(b) of the Texas Business Organizations Code. Noting that a challenge to a foreign plaintiff's right to sue in Texas is properly raised by a verified motion to abate or plea in abatement, which appellant did not file, the court held that this issue was waived. Appellant argued that there was no asset purchase agreement to breach because there was no written agreement. In the absence of a written, signed, and filed rule11 agreement in the record, the court could not conclude that the manufacturer "stipulated" that it was only pursuing a "full" performance exception to the statute of frauds. The court next turned its attention to the issue of joint and several liability. Appellant contended that because the jury instruction regarding damages did not segregate damages proximately caused by the distributor from those proximately caused by its owner, the jury's answer to the question gave the trial court no material guidance for its damages judgment. The court disagreed. Nothing in the damages instruction required the jury to double the manufacturer's benefit-of-the-bargain recovery, the court said. Next, appellant argued there was legally sufficient evidence to submit the issue of wrongful injunction to the jury and that the trial court erred by failing to do so. Here, the trial court did not err by refusing to submit a jury question on the issue because there was no allegation in the counterpetitions that the manufacturer breached any condition of the bond, nor did appellant present any evidence that it did so, the court held. Appellant further argued that there was legally sufficient evidence to submit the issue of tortious interference to the jury, and that the trial court erred by failing to do so. Appellant's claim of tortious interference was based on three potential business deals. However, the court held, these deals were regarding the sale of another of appellant owner's companies. Accordingly, the court affirmed. Duradril LLC v. Dynomax Drilling Tools Inc. and Dynomax Drilling Tools USA Inc., Texas, 14th Court of Appeals, No. 14-14-00945-CV, 2/16/17.

14-14-00945-CV
MARC W. BROWN JUSTICE

Court of Appeals of Texas, Fourteenth

Lopez v. The State of Texas, 14-16-00247-CR (TexApp Dist 02/16/2017)

Appellant Lopez was convicted in two cases of aggravated sexual assault on a child. The jury sentenced him to 20 years' confinement in each case, and the trial court ordered that the sentences run consecutively. Lopez appealed, arguing first that the trial court erred in entering cumulation orders that conflict with the trial court's oral pronouncement of his sentences, and second that the trial court erred by failing to instruct the jury on the burden of proof regarding extraneous offenses. Noting that a clerical error will not render a cumulation order void, the court overruled appellant's first issue. The proper course of action is to reform the court's judgment to conform to the sentences that were orally pronounced, the court held. Turning to appellant's contention that the trial court erred by not instructing the jury, during the punishment phase, that the State must prove extraneous offenses beyond a reasonable doubt, the court disagreed. The court found that the offenses that came into evidence at trial were not truly extraneous offenses, but evidence that arose in the same transaction as the crime at issue, providing context to the case being tried. Such evidence is admissible without a reasonable doubt instruction, the court held. Lopez v. State of Texas, Texas, Fourteenth Court of Appeals, No. 14-16-00247-CR, 14-16-00248-CR, 2/16/17.

14-16-00247-CR
MARC W. BROWN JUSTICE

Court of Appeals of Texas, Sixth Appellate District

In the Estate of Noble Ray Price, 06-16-00062-CV (TexApp Dist 02/15/2017)

This case arose out of a will contest between the wife and son of deceased musician Ray Price. Price's widow filed an interlocutory appeal alleging that the trial court erred in appointing a receiver to take possession of property subject to the will contests. Citing Chapter 64 of the Texas Civil Practice and Remedies Code, the court noted that for a receiver to be appointed, the party seeking appointment must have a probable interest in or right to the property or fund, and the property or fund must be in danger of being lost, removed, or materially injured. Review of the trial court's determination is on an abuse of discretion standard. The court reviewed the pleadings and testimony, which showed that Price's son was contesting the validity of a will that Price signed in the hospital shortly before his death on the basis that Price lacked the capacity to execute it. Accordingly, the court held that the trial court did not abuse its discretion in concluding that the son had a probable interest or right to the property. Further, in light of Price's widow's testimony that she felt Price's property belonged to her and not to the estate, and that she had accepted payments on Price's behalf and written herself a check from his record company, the trial court did not abuse its discretion in holding that the property was in danger of being lost, removed, or materially injured. Accordingly, the court affirmed. In the Estate of Price, Texas, Sixth Appellate District, No. 01-16-00062-CV, 2/15/17.

06-16-00062-CV
RALPH K. BURGESS JUSTICE

Court of Appeals of Texas, Twelfth

Byerley v. McCulley, 12-16-00124-CV (TexApp Dist 02/15/2017)

Appellant William Frank Byerley executed his father's estate after the father died in 2014. Appellant's sister, Carol McCulley, presented their mother's will for probate, which named McCulley the sole beneficiary. The mother had died in 1995. Appellant later filed a petition for a bill of review alleging the court committed substantial error and asking it to deny probate of the mother's will. The court denied the petition. On appeal, appellant argued the trial court erred because McCulley did not notify him of the original probate proceeding by service of process, as required under these circumstances by Tex. Est. Code § 55.251(a). McCulley argued that probate of her mother's will was governed by the law as written when the mother died – which authorized service by posting – due to a saving clause in a 1999 amendment. However, the court found that the saving clause was repealed when the Legislature adopted the current Estate Code on Jan. 1, 2014. It found that although the current act intended no substantive change in the law, the savings clause was not part of the substance of the previous statute because it was not found in the text of the statute itself. Thus, probate of the mother's will was governed by 2014 law, which required service of process. The court also rejected McCulley's argument that appellant had actual knowledge of her application to probate the will, finding that actual knowledge did not satisfy the service of process requirement. The court reversed the trial court's order denying the petition for review, rendered judgment granting the petition, and remanded the case to the trial court. Bylerley v. McCulley, Tyler Court of Appeals, Case No. 12-16-00124-CV, 2/15/17.

12-16-00124-CV
BRIAN HOYLE JUSTICE

Court of Appeals of Texas, Fourteenth

Oakbend Medical Center v. Martinez, Jr., 14-16-00199-CV (TexApp Dist 02/14/2017)

Decedent escaped from his bed at appellant medical center while undergoing psychiatric treatment. Wrist and ankle restraints were available to secure him to a bed but were not in use when he escaped. Decedent sustained fatal injuries when he was struck by a train shortly after leaving his bed and walking out of the facility. Decedent's estate brought the underlying survival and wrongful death action alleging, among other things, appellant was negligent in failing to exercise ordinary care while treating decedent, failed to provide adequate restraining devices, and lacked a reasonably safe and hazard-free premise for invitees. Appellant moved for traditional summary judgment asserting it was entitled to dismissal under governmental immunity and no exception applied under the Texas Tort Claims Act. The trial court denied the motion concluding appellant did not properly implement available bedside restraints in the administration of decedent's care. On appeal, the court reversed holding survival and wrongful death claims predicated on an unrestrained psychiatric patient's escape from a hospital bed were not actionable on this record as decedent's injuries and death did not arise from a condition or use of tangible personal or real property. As the asserted exceptions to appellant's governmental immunity did not apply, the court reversed the trial court's order and rendered judgment dismissing the claims for lack of jurisdiction. Oakbend Medical Center v. Martinez, Houston 14th Court of Appeals, Case No.: 14-16-00199—CV, 02/14/2017

14-16-00199-CV
WILLIAM J. BOYCE JUSTICE

United States Court of Appeals, Fifth Circuit

USA v. Rico-Mejia, 16-50022 (5th Cir. 02/10/2017)

Appellant Jose Gustavo Rico-Meija was sentenced to 41 months in prison for illegal re-entry into the United States. He sentence was enhanced by a 2007 conviction in Arkansas for terroristic threatening, which the district court considered a "crime of violence" under federal sentencing guidelines. Although the court acknowledged that the Arkansas statute did not require physical force, it ruled that appellant's conduct qualified as a crime of violence because it involved a threat to kill. Furthermore, the judge noted that he would have imposed a 41-month sentence – the minimum under the enhancement for a crime of violence – based solely on other factors. Appellant then challenged the sentencing enhancement on appeal. The court first found that a conviction for terroristic threatening must include an element of physical force to qualify as a crime of violence because it is not one of the enumerated crimes in the sentencing guidelines. The court then found that physical force is not an element: Under the Arkansas statute, a defendant can be convicted for threatening property damage rather than death or injury to a person. Thus, the court held that the trial court erred in using the 2007 conviction to calculate the sentence. Next, the court found that the error was not harmless, despite the judge's assertion that he would have imposed the same sentence based on other factors. Such an assertion, absent an explicit statement that the court also calculated the sentence under the correct guidelines, is insufficient to satisfy the "heavy burden" of showing harmlessness, the court stated. The court noted that the correct sentencing guidelines could have resulted in a lighter sentence by as much as 20 months, and that choosing a sentence at the bare minimum of the higher sentencing range "constituted evidence that the range impacted the district court's decision." The court vacated appellant's sentence and remanded for re-sentencing. U.S.A. v. Jose Gustavo Rico-Mejia, Fifth Circuit, Case No. 16-50022, 2/10/17.

16-50022

Court of Appeals of Texas, Fourteenth

Cura-Cruz v. Centerpoint Energy Houston Electric, LLC, 14-15-00632-CV (TexApp Dist 02/16/2017)

CenterPoint Energy Houston Electric maintained a transformer that sparked a fire, damaging several buildings and businesses. The property owners, appellants in the case, sued. The trial court granted CenterPoint's motion to exclude appellants' expert witness, Michael McGraw, who did not have a degree in electrical engineering, and then granted summary judgment for CenterPoint because appellants lacked an expert witness. The appeals court initially reversed and remanded in a Dec. 20, 2016, opinion; then CenterPoint moved for rehearing, so the appeals court withdrew its initial opinion and issued a substitute opinion. In the substitute opinion, the appeals court found in favor of appellants for the same reasons as in the original opinion. First, the court found that the tariff governing CenterPoint did not require appellants to establish that CenterPoint breached a higher duty than "ordinary and reasonable care," contrary to CenterPoint's claims. It then found that Rule of Evidence 702 allows courts to qualify experts on a varying combination of factors and that McGraw, despite the lack of a degree in his field, demonstrated his knowledge through years of working in the field, running a business in the field, and completing extensive coursework toward a degree. Lastly, it found that based on McGraw's affidavit, appellants showed more than a scintilla of evidence that CenterPoint breached its standard of care, sufficient to survive summary judgment. The court reversed and remanded the trial court's judgment, and dismissed the motion for rehearing as moot. Cura-Cruz v. CenterPoint Energy Houston Electric, Houston 14th Court of Appeals, Case No. 14-15-00632-CV, 2/16/17.

14-15-00632-CV
MARTHA HILL JAMISON JUSTICE

United States Court of Appeals, Fifth Circuit

USA v. Lobaton-Andrade, 15-41744 (5th Cir. 02/09/2017)

Appellant Lazaro Lobaton-Andrade was sentenced to 46 months in prison for illegal re-entry after deportation. His sentenced was enhanced by a 2007 conviction in Arkansas for manslaughter, which the trial court concluded was a crime of violence under the federal sentencing guidelines. He appealed, arguing that the Arkansas manslaughter statute did not fit the definition of manslaughter in the sentencing guidelines because the Arkansas statute allowed a manslaughter conviction with a mens rea of negligence. The government argued that the Arkansas statute is divisible, such that it could be narrowed to "recklessly causing the death of another" and thus fit the sentencing guidelines. The court found that a statute must list one or more alternative elements of an offense to be divisible, as opposed to merely listing alternative means of satisfying one element. As in Mathis v. United States, 136 S. Ct. 2243, 2251-54. The court found that Arkansas courts treat the relevant statute as providing alternative means of establishing the mens rea element, because they do not require unanimity among the jury as to the specific grounds. Citing Wyles v. State, 182 S.W.3d 142, 146. The court rejected the government's argument that the statute is divisible because it did not offer "illustrative examples" of alternate means, as did the statute at issue in Mathis. The court found that the Supreme Court did not hold that a statute without illustrative examples necessarily sets forth different elements of an offense. Because the government failed to demonstrate that the Arkansas manslaughter statute was divisible, the court held that the statute's definition of manslaughter was too broad to be a categorical match for the sentencing guidelines and the trial court erred by using the 2007 conviction in its sentencing. The court vacated the sentence and remanded to the district court for resentencing. U.S.A. v. Lobaton-Andrade, Fifth Circuit, Case No. 15-41744, 2/9/17.

15-41744

Court of Appeals of Texas, Eighth District

TXDOT v. Jackson, 08-15-00045-CV (TexApp Dist 02/15/2017)

Decedent was killed when his motorcycle struck a Texas Department of Transportation sign that had blown onto the roadway. The same sign, however, was broken nine days prior and appellant tried to fix it. On the night of the accident, 911 received three calls reporting the down sign, the first being thirteen minutes before decedent's accident. Decedent's estate filed suit against several entities alleging ineffective repair and defect. Although the jury did not find the bolt used to secure the sign as defective, it did find that appellant was negligent and awarded damages. The trial court overruled appellant's motion for directed verdict and post-trial motion for judgment which alleged the evidence was legally insufficient to show it had notice of the defective sign in time to prevent the accident. The court reversed concluding the evidence did not support the verdict. The court noted that there was insufficient time for a TxDOT employee to arrive at the scene and remove the sign prior to the accident and therefore lacked notice of the defect. Further, the court held the record showed only speculation as to whether appellant performed a reasonable inspection of the sign or whether some other inspection regime would have shown a defective condition. As appellant lacked notice that the sign had failed and that there was no opportunity to remedy or warn of the situation, the court reversed and rendered judgment in favor of appellant. Texas Department of Transportation v. Jackson, El Paso Court of Appeals, Case No.: 08-15-00045-CV, 02/15/2017

08-15-00045-CV
ANN CRAWFORD MCCLURE, CHIEF JUSTICE