Recent Decisions

Court of Appeals of Texas, Fourteenth

Vitol v. Harris County, 14-16-00584-CV (TexApp Dist 08/03/2017)

Vitrol provided information about its business property to the appraisal district. Vitrol separately applied for an interstate or foreign commerce tax exemption from the appraisal district. When Vitrol received its tax assessment, it did not contain any IFC exemption. Vitrol orally discussed its exemption request with the appraisal district, but did not file a written or online appeal by the deadline. When Vitrol later filed a written appeal, the appraisal district denied it. The district court dismissed Vitrol's subsequent suit on the basis that Vitrol did not exhaust its administrative remedies (because it did not timely appeal from the denial of its IFC exemption). The court affirmed. It held that, even if the appraisal district separately failed to provide apprise Vitrol of its right to appeal the denial of its IFC application, the appraisal district's denial of that exemption in the tax assessment, and Vitrol's failure to timely appeal from that denial, doomed its claim. Vitol, Inc. v. Harris County Appraisal District, Court of Appeals, No. 14-16-00584-CV, 8/3/17.

14-16-00584-CV
MARC W. BROWN, JUSTICE

Court of Appeals of Texas, First District

Castillo Information v. Dyonyx, 01-16-00649-CV (TexApp Dist 08/01/2017)

Information technology company Dynonyx contracted with the City of Houston to provide Internet services, and it contracted with appellant Castillo Information Technology Services to consult on those services. Dynonyx and appellant signed a master consultant agreement that set a five-year term for their arrangement and set a "firm fixed price (ceiling)" for the term. The agreement also provided that Dynonyx could terminate the contract with 30 days written notice, or terminate immediately if Houston terminated its contract, and provided that Dynonyz would issue purchase orders for specific services. Both sides signed the consultant agreement, and both sides signed the first purchase order, issued the first day of the agreement. However, a few months into the first purchase order, Houston terminated its contract and Dynonyx gave appellant 30 days written notice that it was terminating the purchase order. Appellant sued for breach of contract and promissory estoppel, and the trial court granted summary judgment for Dynonyx and dismissed appellant's claims. On appeal, appellant argued that the purchase order was not subject to the termination clauses of the underlying consultant agreement. The court found that the consultant agreement and purchase order incorporated each other and should be read as one agreement. The court rejected appellant's argument that the incorporation terms were not specific enough for the standard in Owen v. Hendricks (433 S.W.2d 164) and its progeny. The court found those case required specificity only to incorporate an unsigned document, whereas in this case both parties sign the purchase order and the underlying consultant agreement. The court also rejected appellant's argument that construing the purchase order to include the termination provisions would render meaningless the term "firm fixed price 5 year contract" in the agreement. The court found the reverse to be true: Focusing solely on that term rendered meaningless the termination clauses. The court affirmed the trial court's judgment. Castillo Information Technology Srvcs. v. Dynonyx, LP, Houston 1st Court of Appeals, Case No. 01-16-00649-CV, 8/1/17.

01-16-00649-CV
EVELYN V. KEYES, JUSTICE

Court of Appeals of Texas, Fourteenth

Pounds v. Liberty Lloyd, 14-16-00263-CV (TexApp Dist 08/01/2017)

This case concerned whether an insurer waived appraisal of a homeowner's insurance claim by denying it and, if not, whether an appraisal award supported summary judgment against the owner's contractual and extra-contractual claims. Appellant purchased a home insurance policy from appellee; appellant submitted a claim for storm damage which appellee denied on the ground that "no storm related damages were found." When the parties were unable to resolve their dispute at mediation, appellee invoked its right to an appraisal and the trial court granted its motion to compel same. The appraisers eventually agreed that appellant's home had experienced covered damage as a result of a storm and agreed on the amount of the loss. Appellee subsequently moved for, and was granted, summary judgment. On appeal, appellant argued the trial court erred in compelling appraisal because appellee waived its right by initially denying the claim. The court affirmed holding (1) appellant failed to establish that appellee's denial, standing alone, was a knowing waiver of the right to an appraisal; and (2) appellant failed to establish that he was prejudiced as a result of appellee's initial denial of his claim. Finally, the court concluded appellee established as a matter of law that it did not breach the insurance contract, which, under the facts of this case, also defeated appellant's extra-contractual claims. Accordingly, the court affirmed the trial court's final judgment. Pounds v. Liberty Lloyds of Texas Insur. Co., Houston 14th Court of Appeals, Case No.: 14-16-00263-CV, 08/01/2017

14-16-00263-CV
J. BRETT BUSBY, JUSTICE

Court of Appeals of Texas, Thirteenth

Traylor v. State of Texas, 13-13-00371-CR (TexApp Dist 08/03/2017)

Appellant's first trial ended in a mistrial after the trial court determined that the jury was deadlocked on the lesser-included offense of second-degree burglary and that further deliberation would be futile. During his second trial, the jury found appellant guilty of first-degree burglary of a habitation, and the trial court sentenced him to twenty years in prison. By two issues, appellant contended that his conviction violated two amendments to the United States Constitution: (1) the sixth amendment's speedy trial clause, and (2) the fifth amendment's double jeopardy clause. On appeal, the court initially concluded that appellant's right to a speedy trial was not violated in accordance with Barker v. Wingo, 407 U.S.514 530 (1972). The court noted that although trial was delayed more than twenty-eight months, appellant acquiesced to some of the delay by requesting continuances and was not further prejudiced. As such, appellant's sixth amendment right to a speedy trial was not violated. However, the court reversed finding appellant's conviction violated the double jeopardy clause's prohibition on successive trials. Here, the foreperson reported that all twelve jurors were unanimous against guilt on the charged offense but they were deadlocked against guilt on the lesser-included offense. The court concluded the jury's communication contained the finality necessary to amount to an acquittal on first-degree burglary for double jeopardy purposes and appellant could not be retried for the offense. Accordingly, the court reversed appellant's conviction and remanded for further proceedings. Peter Anthony Traylor v. The State of Texas, Corpus Christi-Edinburg Court of Appeals, Case No.: 13-13-00371-CR, 08/03/2017.

13-13-00371-CR
ROGELIO VALDEZ, CHIEF JUSTICE

United States Court of Appeals, Fifth Circuit

Sanchez v. Young County, 16-10227 (5th Cir. 07/31/2017)

The decedent (Simpson) died in county jail from a probable suicide, after she had been arrested for public intoxication. Prior to her death, Simpson's husband warned authorities that Simpson was likely going to try to harm herself. Simpson's estate sued, alleging the county was liable for the acts of its employees who arrested and jailed Simpson, and that the unconstitutional conditions of pretrial confinement caused Simpson's death. The district court granted the defendants' motion for summary judgment. The court agreed that the county was not liable for the acts of its employees because there was no evidence of policy, custom or municipal practice leading to Simpson's death, and Simpson's treatment by county employees did not indicate subjective deliberate indifference. The court, however, remanded the case for consideration by the district court, in the first instance, of the estate's unconstitutional confinement claim. Sanchez v. Young County, Texas, Fifth Circuit, No. 16-10227, 7/31/17.

16-10227

United States Court of Appeals, Fifth Circuit

Bynane v. The Bank Of New York Mellon, 16-20598 (5th Cir. 08/04/2017)

After Bynane defaulted on his homeowners' loan, the Bank of New York Mellon (BONYM) accelerated the debt, obtained an order to proceed with foreclosure and sold the property to David Guzman. Bynane then filed suit in Texas state court against BONYM, Guzman and others. After the case was removed to federal court, the district court denied Bynane's motion to remand and, instead, granted the defendants' motion to dismiss with prejudice. Bynane appealed. He first argued that the district court erred by considering only the citizenship of BONYM as trustee, and should have considered the citizenship of each of the shareholders of the trust. The court rejected Bynane's argument and, instead, followed its earlier decision in Justice v. Wells Fargo Bank National Association, 674 App'x 330 (5th Cir. 2016) (per curiam), holding that, where a trustee sues or is sued in its own name, the citizenship of the trustee controls for jurisdictional purposes. Bynane next argued that, because Guzman sold the house to a Texas resident prior to removal (Julian), Julian was the real party in interest, and his presence destroyed diversity. The court rejected this argument, holding that, even if Julian had an interest in the property at the time of removal, he was not a real party in interest. The court rejected Bynane's remaining arguments, which asserted that certain documents were forged or that he was promised an opportunity to modify his loan, as against the law or the facts. Bynane v. The Bank of New York Mellon, Fifth Circuit, No. 16-20598, 8/4/17.

16-20598
KING, CIRCUIT JUDGE

Court of Appeals of Texas, Eighth District

In Re Rafael Quinones, 08-17-00005-CV (TexApp Dist 07/31/2017)

Relators Rafael and Yvonne Quinones sued insurance adjuster Patrick Waechter and served him by certified mail at the California address on his license. Waechter moved to quash the service as defective because he did not live or work at that address. The court quashed the motion and relators filed for mandamus relief, arguing, as they did in the trial court, that Waechter's motion qualified as a general appearance granting the trial court personal jurisdiction over him. In a substitute opinion, the court found that because Waechter did not file a special appearance, he made a general appearance by moving to quash. Thus, the court found that the only relief available to him comes from Tex.R.Civ.P. 122, under which a defendant is considered to have been duly served via his court appearance but is granted extra time to answer. The court therefore held that the trial court's order quashing the motion contravened R. 122. The court ordered conditional mandamus relief and directed the trial court to set aside the portion of its ruling requiring relators to obtain proper service. In Re Rafael Quinones, El Paso Court of Appeals, Case No. 08-17-00005-CV, 7/31/17.

08-17-00005-CV
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

Court of Appeals of Texas, Fourteenth

In re Invum, 14-17-00449-CV (TexApp Dist 08/01/2017)

Relator Invum Three, LLC purchased a property at a foreclosure sale. Relator sued to evict the previous owner, Ronald Ricks, and when Ricks failed to appear at trial, the court awarded possession to relator. When the sheriff posted the writ of possession at the property about two weeks later, Ricks moved to stay the writ and moved for a new trial, the trial court stayed the writ, and relator sought mandamus relief. In a corrected opinion, the court found that Tex. R. Civ. Proc. 510.13 did not give the judge discretion to stay the writ of possession. The court found the statute allows a judge to stay a writ of possession only if the appellant files a supersedeas bond within 10 days from judgment, which had not happened here. The court granted conditional mandamus relief, directing the judge to vacate his order staying the writ. In re Invum Three, LLC, Houston 14th Court of Appeals, Case No. 14-17-00449-CV, 8/1/17.

14-17-00449-CV
KEVIN JEWELL, JUSTICE

Court of Appeals of Texas, Second District

Lon Smith & Associates v. Key, 02-15-00328-CV (TexApp Dist 08/03/2017)

Joe Key signed contact with appellant Lon Smith Roofing and Construction to fix his roof. The contract included a clause allowing appellant to "pursue … a price agreeable to the insurance company and LSRC." However, Key's insurance company covered only $18,926 of the $33,769 final bill. Appellant sued Key and his wife to recover the rest. They countered with a class-action suit alleging appellant acted as an insurance adjuster without a license, and that appellant's contracts including the same clause were void as to every other customer who signed. An interlocutory appeal followed challenging the class-action certification. The court found the trial court properly found numerosity because it defined class as anyone in Texas who signed a contract since 2003, and that the sheer numbers and geography of Texas make joinder impractical. The court also found the Keys' representation was adequate for the class because they had hired attorneys who worked on similar cases at the appellate level previously, including one case in the Northern District of Texas -- Reyelts v. Cross (968 F. Supp. 2d 835) – in which appellant was the defendant. The court found appellant's arguments against the typicality of claims was "without merit." Appellant also challenged the commonality of claims, arguing that certain individual claims would be barred by the statute of limitations and that damages would have to be calculated on an individual basis. The court found that although certain fact-specific defenses can thwart a class action, a statute of limitations defense cannot, under In re Monumental Life Ins. Co. (365 F.3d 408). The court noted this defense rests in part on the common fact question of when the action was filed. The court also found damages, in this case, could be calculated from appellant's records and do not require individual testimony from each plaintiff. Appellant also challenged several questions of law. In one, the court rejected appellant's argument that it should be allowed to individually offset plaintiff's claims. The court found Tex. Ins. Code §4102.207 precluded offsets for unlicensed insurers, to penalize such insurers because they are not subject to the "checks, balances, and penalties" levied against licensed insurers. The court also overruled appellant's argument that the contract was merely voidable, not void, finding that both Tex. Ins. Code ch. 42 and Reyelts prohibited appellant's conduct. However, the court agreed with appellant that the Keys' claim that appellant's conduct was unconscionable, is inappropriate for a class-action suit. The court noted such as claim would require individual findings of each plaintiff's lack of understanding and experience about insurance matters, to establish that appellant took advantage of individual plaintiffs. The court reversed the trial court's judgment certifying the unconscionable claim, affirmed the judgment in all other respects, and remanded with instructions to decertify the unconscionable claim. Lon Smith & Associates, Inc. v. Key, Fort Worth Court of Appeals, Case No. 02-15-00328-CV, 8/3/17.

02-15-00328-CV
SUE WALKER, JUSTICE

United States Court of Appeals, Fourth Circuit

Alfaro-Jimenez v. State of Texas, 04-16-00188-CR (4th COA. 08/02/2017)

Appellant, the suspect in a domestic disturbance, approached police after the incident "to set the record straight." Police handcuffed appellant for their safety, and an officer testified that when they asked appellant for ID, he instructed them to take his wallet out of his back pocket. Police became suspicious of appellant's stated identity and of his social security card. Police eventually identified appellant as Juan Pablo Alfaro-Jimenez and determined that his social security card bearing a different name was fraudulent. At trial, appellant acknowledged buying the fraudulent card but testified he used it only to obtain work, not to obtain social security benefits. A jury convicted appellant of tampering with a government document, the trial court sentenced him to a year in prison and a $1,500 fine, and an appeal followed. On one issue, appellant argued the trial court improperly denied his motion to suppress evidence because police lacked a reason to arrest him and extended the arrest beyond reasonable grounds. The court found that police were within their rights to handcuff appellant for their safety, because he was suspected in a domestic disturbance; that police had a right to identify appellant; and that appellant consented to the search of his wallet. On another issue, appellant challenged the sufficiency of the evidence. The court found that his acknowledgement that he bought the card was sufficient to show tampering. The court also found that because he did not apply for benefits, and therefore did not use the card to harm someone else, the jury reasonably convicted of the lesser charge of misdemeanor tampering instead of felony tampering. In his last issue, appellant claimed the statute under which he was charged was unconstitutionally vague, but the court found he did not preserve the issue for appeal. The court affirmed the trial court's judgment. Juan Pablo Alfaro-Jimenez v. The State of Texas, San Antonio Court of Appeals, Case No. 04-16-00188-CR, 8/2/17.

04-16-00188-CR
PATRICIA O. ALVAREZ, JUSTICE

Court of Appeals of Texas, Fourteenth

Lee v. Lee, 14-16-00258-CV (TexApp Dist 08/01/2017)

Katherine Pillot Lee Barnhart died in 1975, leaving behind a trust that provided for quarterly payments to her two children, Ronald Lee and appellant Susan Camille Lee, and their children. Ronald was the initial trustee, but after he failed to make distributions for 13 years, appellant sued him in probate court. After lengthy litigation, appellant replaced Ronald as trustee and Ronald owed the trust more than $6 million. Fourteen years later, appellant had made no payments to Ronald or his daughter – though she made payments to herself and her own daughter. Ronald sued and sought a trust accounting, to determine how much of his debt was offset by withheld payments. The district court removed appellant as trustee and appointed Legacy Trust Company as receiver. Legacy and Ronald settled his debt, Legacy sought probate court approval of the settlement, the trial court denied appellant's motion for a continuance and approved the settlement, and an appeal followed. Appellant argued the probate court lacked jurisdiction because the district court that removed her as trustee had original, exclusive jurisdiction, and that a probate court has concurrent jurisdiction only when a probate proceeding is pending. The court found that Tex. Trust Code §115.001 gave probate courts an exception to the rule of exclusive jurisdiction for district courts, and that Tex. Estates Code §32.006 unambiguously gives probate courts jurisdiction to hear actions on testamentary trusts. The court found that by the statute's plain language, jurisdiction is not contingent on a pending probate proceeding. Appellant also argued the settlement should not have been approved because it included conveyances of Ronald's one-quarter interest in properties otherwise owned by the trust. The court found no support for her argument that these interests were "of little or no value because the Trust already owned the interest." The court also found that the trial court properly allowed Ronald to consider the costs of forensic accounting and legal fees caused by appellant's refusal to provide trust information. The court also overruled several objections Ronald had, mostly on jurisdictional issues, to the appeal itself. The court affirmed the trial court's judgment. Lee v. Lee, Houston 14th Court of Appeals, Case No. 14-16-00258-CV, 8/1/17.

14-16-00258-CV
TRACY CHRISTOPHER, JUSTICE

Court of Appeals of Texas, Eighth District

Tena v. State of Texas, 08-15-00152-CR (TexApp Dist 07/31/2017)

Following presentation to an emergency room for an apparent seizure, the surgeon discovered active bleeding from veins in the superior sagittal sinus; the child survived and recovered from her injury. Appellee concluded that appellant inflicted some of the trauma on the child by either striking her head against some object, or striking some object against her head. A jury subsequently convicted appellant of injury to a child, resulting in an eight-year sentence and the maximum possible fine. The sole issue on appeal was the legal sufficiency of the evidence to support the conviction. Considering all of the evidence together, the court affirmed concluding there was sufficient evidence supporting the jury's finding that appellant recklessly caused serious bodily injury to the child. The consensus from all four testifying doctors was that the injury resulted from some type of trauma. While they could not rule out a fall, the kind of fall they descried would have been spectacular, such as down a flight of stairs or off a one or two story structure. Such trauma was not of a kind that children inflict on themselves in everyday play. Further, appellant had sole contact and care with the child until she started exhibiting profound symptoms. Accordingly, a reasonable jury could sift through any conflicting testimony and determine the evidence established that appellant caused the child's injury; therefore, the court affirmed conviction. Arturo Tena v. The State of Texas, El Paso Court of Appeals, Case No.: 08-15-00152-CR, 07/31/2017

08-15-00152-CR
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

Court of Appeals of Texas, Fourteenth

Matthews v. State of Texas, 14-16-00913-CR (TexApp Dist 08/01/2017)

The state charged appellant Jeremiah M. Matthews with capital murder. The 179th District Court in Harris County indicted appellant, but the 182nd District Court in Harris County tried him. Appellant pled guilty, the trial court sentenced him to 45 years, and an appeal followed, Appellant argued the grand jury served only the 179th District Court, and therefore the 182nd lacked jurisdiction. The court found that under Davis v. State (519 S.W.3d 251), a transfer of cases within a county does not create a jurisdictional defect. The court also found that all district courts within a county have jurisdiction over the same cases under Tex. Gov't Code §74.094. The court found that the transfer of the case "amounts only to a procedural irregularity," an issue the defendant must raise before trial. Although a true jurisdictional defect can be raised for the first time on appeal, the court held that appellant waived the transfer issue by failing to raise it during trial. The court affirmed the trial court's judgment. Matthews v. The State of Texas, Houston 14th Court of Appeals, Case No. 14-16-00913-CR, 8/1/17.

14-16-00913-CR
KEM THOMPSON FROST, CHIEF JUSTICE

Court of Appeals of Texas, Fourteenth

University of Texas v. McKenzie, 14-16-00681-CV (TexApp Dist 08/03/2017)

The McKenzie estate sued MD Anderson following the death of Courtney McKenzie, alleging that MD Anderson's negligence caused her death. MD Anderson filed a plea to jurisdiction, arguing that it was immune from suit under the TTCA because an independent contractor performed the procedure, and that McKenzie's death was not foreseeable. Following a hearing, the trial court denied MD Anderson's plea to jurisdiction. The court affirmed the trial court's denial of MD Anderson's plea. It agreed that the estate alleged and produced evidence that MD Anderson "used" tangible personal property, waiving its immunity. It also agreed that the estate alleged and produced evidence that MD Anderson proximately caused McKenzie's death. It accordingly affirmed the trial court's order denying MD Anderson's plea to jurisdiction and remanded the case to the trial court for further proceedings. University of Texas M.D. Anderson Cancer Center v. McKenzie, Court of Appeals, No. 14-16-00681-CV, 8/3/17.

14-16-00681-CV
KEVIN JEWELL, JUSTICE

Court of Appeals of Texas, First District

Rampersad v. Centerpoint, 01-16-00675-CV (TexApp Dist 08/01/2017)

Appellant was traveling on his motorcycle when he was struck by another driver while entering an intersection. Appellant's left leg was severely injured in the accident, which ultimately required amputation of his leg below the knee. Shortly before the collision, a stirrup clamp connecting appellee's primary power line to a utility pole failed causing the circuit that serviced the traffic lights at the intersection to become de-energized and stop working. Appellant subsequently sued for negligence, alleging, among other things, that appellee failed to properly install, inspect, and maintain the stirrup clamp. Following a hearing on motion, the trial court grated summary judgment in favor of appellee. On appeal, the court affirmed holding that the supervening act of one driver's failure to treat the down traffic light as a four-way stop, alleviated appellee of negligence. The court noted that even if there was a negligent act of installation, the light was hanging there waiting to be treated as a four-way stop sign. As at least one of the drivers failed to comply with the governing traffic laws by failing to stop or yield the right of way, it was this failure that proximately caused appellant's injuries. Because driver conduct constituted an intervening and superseding cause of the collision, appellee could not be held liable for appellant's injuries and the court affirmed the trial court's judgment. Rampersad v. CenterPoint Energy Houston Electric, LLC, Houston 1st Court of Appeals, Case No.: 01-16-00675-CV, 08/01/2017.

01-16-00675-CV
RUSSELL LLOYD, JUSTICE

Court of Appeals of Texas, Eighth District

Worthing v. Deutsche Bank, 08-16-00009-CV (TexApp Dist 07/31/2017)

Deutsche Bank initiated foreclosure against the plaintiffs, alleging that they stopped making payments on their mortgage note. The trial court granted the foreclosure application, Deutsche Bank foreclosed on the house, and sold it. The plaintiffs sued Deutsche Bank and others. The trial court granted the defendants' summary judgment motions, and the plaintiffs appealed. The court affirmed. It held that, although the original lender was unlicensed at the time the loan was made, because it subsequently obtained a license (before the plaintiffs made their complaint), that cured any defect. The court also rejected the plaintiffs' claim that, because some of the documents were "robo-signed," they were forgeries. The court held that the plaintiffs did not sufficiently show that the allegedly robo-signed documents were forgeries. The remaining alleged errors in the documents, the court held, were insufficient to create any disputed issue of material fact. Worthing v. Deutsche Bank National Trust Company, Court of Appeals, No. 08-16-00009-CV, 7/31/17.

08-16-00009-CV
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

Court of Appeals of Texas, Eighth District

Esquivel v. Garcia, 08-16-00154-CV (TexApp Dist 07/26/2017)

G&R, a law firm, sued Esquivel, its former receptionist, alleging that she embezzled approximately $4,000 per month over an undisclosed period. Esquivel answered with a general denial. G&R moved for summary judgment, which the trial court granted. The court reversed. It held that G&R had not shown that Esquivel embezzled, misapplied or converted money to her own use and that, in fact, she denied doing so. The court further held that the trial court's $200,000 damages award was not supported by G&R's "evidence," which consisted of a spreadsheet that was "unauthenticated (or even explained)." The court held that Esquivel's failure to properly respond to G&R's summary judgment motion did not salvage G&R's otherwise deficient traditional motion for summary judgment. Because G&R's evidence did not conclusively establish either Esquivel's liability or the amount of G&R's loss, the court reversed and remanded the case for further proceedings. Esquivel v. Garcia & Rebe Law Firm PLLC, Court of Appeals, No. 08-16-00154-CV, 7/26/17.

08-16-00154-CV
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

Court of Appeals of Texas, Fourteenth

Thompson v. Geico, 14-16-00154-CV (TexApp Dist 08/03/2017)

Appellant owned a 2011 Infiniti G37 automobile and secured insurance for it from appellee. Appellant subsequently traded in her vehicle and leased a 2015 Infiniti Q50 automobile but did not notify appellee that she had acquired the replacement vehicle. A few months later, while driving the Q50, appellant was involved in an automobile accident. Appellant filed a claim with appellee the day of the accident which was appellee's first notification of the difference vehicle. Appellee denied the claim because appellant failed to notify it within thirty days of acquiring the new vehicle, citing to a replacement-vehicle notification provision in the insurance policy as support for its denial. Appellant filed suit alleging breach of contract, breach of the duty of good faith and fair dealing, violations of the Texas Deceptive Trade Practices Act, and violations of the Texas Insurance Code. On motion, the trial court granted appellee's summary judgment. On appeal, appellant argued the policy's replacement-vehicle notification requirement did not apply to leased vehicles or, alternatively, that the policy language was ambiguous to the point and should be construed in her favor. The court affirmed finding the policy required appellant who leased a vehicle to comply with the notice requirements to extend coverage to that vehicle. The court discerned no other reasonable interpretation of the operative policy provisions and declined to conclude the policy was ambiguous. Accordingly, the trial court properly granted appellee's motion for summary judgment. Thompson v. GEICO Insur. Agency, Inc., Houston 14th Court of Appeals, Case No.: 14-16-00154-CV, 08/03/2017.

14-16-00154-CV
KEM THOMPSON FROST, CHIEF JUSTICE

Court of Appeals of Texas, Sixth Appellate District

High Mountain v. Niece, 06-16-00072-CV (TexApp Dist 08/04/2017)

Appellant High Mountain Ranch Group owned two lots in a subdivision. The lots, which fronted roads, were zoned for commercial uses, but one lot was subject to restrictive covenants limiting it to residential uses, which appellant claimed prevented it from selling the lot. After a petition in the subdivision to change to covenants failed, appellant sued certain landowners for a declaratory judgment to nullify the covenants. The court granted summary judgment for the defendants, based on its finding that appellant did not present a justiciable case or controversy, and awarded more than $90,000 in attorney's fees to four defendants. An appeal followed, challenging the ruling and the award. The court found that appellant's issue was not ripe for a declaratory judgment because there had been no action that would provoke an inevitable lawsuit. The court noted that appellant had not attempted to build a commercial venture on the property in violation of the restrictive covenants or present a plan for such a venture to the other land owners. The court also found that concerns about whether the restrictions would chase away potential buyers, while valid, were mere "speculation" did not create a justiciable controversy. The court rejected appellant's argument that defendants' failure to sign the petition created a justiciable controversy, finding that they were not legally required to take any action in response to the petition and furthermore that there was no evidence that they were actually opposed to the zoning change. On the attorney fee issue, appellant argued that the four defendants should have been denied fees because they designated their expert witnesses after the due date. The court found in two cases that there was no surprise or unfair prejudice because the defendants had sought fees since their first pleading, and in the other two cases that appellant failed to preserve the issue for appeal. The court affirmed the trial court's judgment. High Mountain Ranch Grp. v. Niece, Texarkana Court of Appeals, Case No. 06-16-00072, 8/4/17.

06-16-00072-CV
BAILEY C. MOSELEY, JUSTICE

Court of Appeals of Texas, Fourteenth

Clear Creek v. Cotton Commerical, 14-16-00466-CV (TexApp Dist 08/01/2017)

After Hurricane Ike damaged several of its campuses, appellant Clear Creek Independent School District contracted with Cotton USA, a predecessor to appellee Cotton Commercial, to remove debris and make repairs. A dispute ensued over debris removal purported to have been done by a subcontractor, and appellant paid Cotton only $700,000 of the $1.4 million invoiced. The subcontractor eventually produced false documentation of its work to substantiate Cotton's claims, which led to the Federal Emergency Management Agency withholding more than $250,000 in reimbursement that appellant sought. Appellant sued, the trial court compelled arbitration on Cotton's motion, and the arbitrator awarded Cotton roughly $670,000 plus interest for appellant's failure to pay. When Cotton moved to confirm the award at the trial court, appellant moved to vacate, claiming the trial court lacked subject-matter jurisdiction due to governmental immunity. The trial court denied the motion and confirmed the award, and an appeal followed. Appellant argued that its contract was not subject to the immunity waiver in Tex. Loc. Gov't Code §271.152 because it did not contain a statement of the work to be done, and therefore did not meet §271.152(2)'s requirement that the written contract must "state the essential terms of the agreement." The court found that the service provided is indeed an essential term under the statute, but that general terms in the contract regarding cleanup were sufficient to meet the "low threshold" for stating terms under the statute. The court rejected appellant's argument that the contract failed to state essential terms because it did not specifically provide for Cotton to use subcontractors. The court found that the contract simply called for Cotton to provide debris removal and for appellant to pay Cotton regardless of how the service was rendered. The court also noted that when appellant initially sued Cotton, it argued that the contract included debris removal services. The court held that the trial court had subject-matter jurisdiction over appellant and affirmed the trial court's judgment. Clear Creek Ind. School Dist. v. Cotton Commercial USA, Inc. Houston 14th Court of Appeals, Case No. 14-16-00466-CV, 8/1/17.

14-16-00466-CV
KEVIN JEWELL, JUSTICE

Court of Appeals of Texas, First District

Paz v. State of Texas, 01-15-00979-CR (TexApp Dist 08/03/2017)

The one-month-old daughter of appellant Milton Rolando Paz died while in his care. She suffered skull fractures and hemorrhaging. Appellant, after being held overnight and questioned for four hours, told an officer named Montoya that he threw the baby onto a bed and she hit her head on the headboard. Appellant also told Montoya that a Sgt. Figueroa had earlier lunged at him and called him derogatory names. Appellant made his statement to Montoya after Montoya told appellant that if he didn't cooperate, he would send him to Figueroa and another officer, adding "and you already know what they're going to do with you." Appellant thus moved to suppress his confession as involuntary, but the trial court allowed it, and Figueroa testified that appellant's allegations were false. The jury believed Figueroa's version of events and convicted appellant of capital murder with an automatic life sentence. An appeal followed, on grounds that the trial court should have suppressed the confession, that the trial court failed to instruct the jury on voluntariness, and the trial court should not have admitted certain autopsy photographs. On the issue of the confession, the court found that the trial court made a valid finding in believing Figueroa's version of events. Thus, there were no grounds to conclude that the confession was involuntary. However, the court also found that when some evidence of involuntariness is presented to a jury, the trial court must issue a sua sponte jury instruction on voluntariness under Tex. Code Crim. Proc. art. 38.22 §6. The court noted Texas law on this point is broader than federal law. The court found that the transcript of appellant's police interview was read to the jury, including portions wherein he told Montoya of his allegations against Figueroa. Because this evidence was presented to the jury, the court held that the trial court erred by failing to issue a jury instruction. The court rejected the state's argument that Montoya's statement that "you already know what they're going to do with you" was ambiguous, finding the meaning of the statement was a question of fact for the jury. In the last issue, appellant argued the graphic autopsy photos were prejudicial, but the court found that the probative value of showing the infant's injuries outweighed prejudice and overruled this issue. The court reversed the trial court's judgment because of the failure to issue the jury instruction, and remanded. Milton Rolando Paz v. The State of Texas, Houston 1st Court of Appeals, Case No. 01-15-00979-CR, 8/3/17.

01-15-00979-CR
LAURA CARTER HIGLEY, JUSTICE

United States Court of Appeals, Fourth Circuit

Cotter & Sons v. BJ Corporation, 04-16-00186-CV (4th COA. 07/26/2017)

Appellee sued appellants for breaching its contracts to provide janitorial services to buildings belonging to appellants, quantum meruit, and negligent and fraudulent misrepresentation. In addition, appellant raised affirmative defenses of commercial bribery as well as breach of fiduciary duty and conspiracy. Based on the jury's findings, the trial court entered a judgment awarding appellee damages for its breach of contract and negligent misrepresentation claims. On appeal, the court reversed in part as to appellee's breach of contract and alternative quantum meruit claim, as well as reversed and rendered on its negligent misrepresentation claim. Appellants argued the jury's findings that the contracts were not procured by bribery was against the great weight and preponderance of the evidence. The court agreed finding that upon applying the definition of bribery in the jury charge to the evidence in this case, the jury findings were against the weight and preponderance of the evidence. The court noted that a fiduciary whom received a benefit from the contract procured such contract by bribery and thus went against the jury's findings. Further, the court found that appellants' duties to appellee arose solely from the contracts and there was no evidence it breached any independent duty to appellee. Accordingly, the court reversed that portion of the judgment that awarded appellee damages for negligent misrepresentation and rendered judgment for appellants. Cotter & Sons, Inc. v. BJ Corp., San Antonio Court of Appeals, Case No.: 04-16-00186-CV, 07/26/2017.

04-16-00186-CV
PATRICIA O. ALVAREZ, JUSTICE

Court of Appeals of Texas, Eighth District

Lemon v. Hagood, 08-15-00309-CV (TexApp Dist 07/26/2017)

Appellant D. Brent Lemon formed a partnership with fellow attorney Van Shaw, which took a case against Holmes Builders for a 40 percent contingency fee. They contracted with Daniel Hagood to work on the case for 25 percent of their fee. Their clients, Gary Carpenter and Julie Perez, lost and filed bankruptcy; Shaw and appellant ended their partnership; appellant took the case to his new practice and won a $2 million judgment on appeal; and Hagood contacting appellant for his share of the fee, which appellant did not pay. Holmes Builders also filed bankruptcy, and the bankruptcy court appointed appellant to pursue certain claims. Appellant, who filed an affidavit with the bankruptcy court that his representation of his clients had ended and he had waived all recovery from them, eventually received $388,000 in fees from the bankruptcy proceedings. Hagood sued appellant and won $97,000 plus $207,000 in attorney's fees, and an appeal followed on 19 issues. The court found that Hagood generally would be required to obtain a judgment against the partnership that employed him before he can reach appellant's assets as a partner, under Tex. Bus. Orgs. Code §152.306 and American Star Energy and Minerals Corp. v. Stowers (457 S.W.3d 427). The court found that the jury properly found appellant was quasi-estopped from asserting that he had a partnership, because he had denied a partnership on other occasions. The court found that in the Carpenters' bankruptcy, the bankruptcy court took possession of the Carpenters' claim against Holmes Builders, and later sold it back to them, free and clear of encumbrances – including the partnership's claim for attorney's fees. The court found that Hagood's attempt to collect from appellant was a collateral attack on that order. The court reversed the trial court's judgment and rendered a take-nothing judgment against Hagood. Lemon v. Hagood, El Paso Court of Appeals, Case No. 18-15-00309-CV, 7/26/17.

08-15-00309-CV
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

Court of Appeals of Texas, First District

Sandt v. Energy Maintenance, 01-15-01070-CV (TexApp Dist 07/27/2017)

Sandt, a former Energy Maintenance officer, sued the company and its CEO (Nesler), alleging they wrongfully diluted Sandt's ownership interest, committed fraud and committed a breach of fiduciary duty. While Sandt's suit was pending, Energy Maintenance's board agreed to indemnify Nesler. Sandt prevailed at trial and was awarded over $1 million in damages. While an appeal was pending, a new board fired Nesler and passed a resolution revoking the prior indemnification resolution. Energy Maintenance then entered into a settlement with Sandt in which it resolved all liability, except for the $300,000 exemplary damages award assessed against Nesler individually. The settlement agreement provided that Sandt would not seek recovery of the $300,000 owed by Nesler from Energy Maintenance "either directly or indirectly." A dispute thereafter arose over whether Sandt could pursue the $300,000 from Nesler, and if Energy Maintenance had a duty to indemnify Nesler. The trial court ruled that Nesler was entitled to indemnity from Energy Maintenance, but that Sandt could not attempt to collect the $300,000 from Nesler because that would breach the provision in the settlement agreement barring "indirect" recovery from Energy Maintenance. Energy Maintenance and Sandt appealed. The court held that, once the Energy Maintenance board agreed to indemnify Nesler, that agreement was not subject to revocation, even if the company later determined that Nesler did not act in good faith. The court held that Energy Maintenance could not sue Nesler for fraud or breach of fiduciary duty because those claims were time-barred. Finally, the court agreed that the settlement agreement prevented Sandt from attempting to collect the $300,000 from Nesler because, as a result of the indemnity provision, that attempt would be an "indirect" attempt to collect from Energy Maintenance. Sandt v. Energy Maintenance Services Group I, LLC, Court of Appeals, No. 01-15-01070-CV, 7/27/17.

01-15-01070-CV
JANE BLAND, JUSTICE

United States Court of Appeals, Fifth Circuit

Laney v. Nationwide, 16-11183 (5th Cir. 07/28/2017)

Laney was sued for violations of trademark law by the ART Companies. After Nationwide denied coverage, Laney filed a declaratory judgment suit, seeking a declaration that Nationwide had a duty to defend the underlying suit. The district court granted Nationwide's motion for summary judgment. The court affirmed. It held that the underlying complaint did not allege that Laney used the ART Companies' "advertising idea." It further held that the underlying complaint did not assert or allege a "trade dress" claim. Finally, it held that the underlying complaint did not allege that Laney had improperly used ART Companies' slogan. Because these were the three primary arguments Laney asserted in favor of coverage, the court held that the district court correctly granted Nationwide's motion for summary judgment, holding that it had no duty to defend the underlying suit. Laney Chiropractic and Sports Therapy, P.A. v. Nationwide Mut'l Insur. Co., Fifth Circuit, No. 16-11183, 7/28/17.

16-11183
STEPHEN A. HIGGINSON, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

Mahmoud v. De Moss, 15-20618 (5th Cir. 07/28/2017)

After the plaintiffs' condominium was foreclosed upon, they sued the defendants (the condominium association, its law firm and others) for multiple common law and statutory claims. The district court granted the defendants' motion for summary judgment. The court affirmed. It held that the plaintiffs could not sue the defendants for breach of contract because the plaintiffs were in breach and, under Texas law, a party who is already in default cannot maintain a suit for its breach. The court held that summary judgment was proper on the wrongful foreclosure claim because, even if there was an inaccurate balance stated in the default notice, that error did not support a wrongful foreclosure claim. The court held that summary judgment was proper on the misrepresentation claim because the plaintiffs never identified specific misrepresentations or how they were damaged by the alleged misrepresentations. The court held that summary judgment was properly granted on the Fair Debt Collection Practices Act because, even if the defendants were attempting to collect on a debt that was partially time-barred, and thus could not be enforced by nonjudicial foreclosure, that error did not give rise to a FDCPA claim. Finally, the court held that, because the plaintiffs were not "consumers" under the Texas Deceptive Trade Practices Act, summary judgment was correctly granted on that claim. Mahmoud v. De Moss Owners Assoc., Inc., Fifth Circuit, No. 15-20618, 7/28/17.

15-20618
EDITH H. JONES, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

Dallas v. Woody, 16-10613 (5th Cir. 07/27/2017)

Woody sought reimbursement for the cost of her daughter's private-school tuition, arguing that the school district failed to offer her daughter a proper learning environment for the 2013-14 academic year, as required by the Individual with Disabilities Education Act. A hearing officer found for Woody, and awarded her approximately $25,000. The district court affirmed, but reduced the award to approximately $12,000 because it found that Woody's conduct contributed to the parties' dispute. The school district appealed. The court explained that reimbursement of private-school costs is permitted when the school district fails to provide a proper public education and the private-school placement is appropriate. It agreed that the school district did not comply with its requirements under the act. It held, however, that Woody was only entitled to reimbursement from the time the school district failed to comply, or from when it should have complied, with the requirements of the statute, and not for the entire semester or academic year. It remanded the case to the district court to calculate the amount of damages from this date, until the end of the school year. Dallas Indep. School Dist. v. Woody, Fifth Circuit, No. 16-10613, 7/27/17.

16-10613
LESLIE H. SOUTHWICK, CIRCUIT JUDGE

Court of Appeals of Texas, First District

In re Miguel Zaragoza, 01-16-00952-CV (TexApp Dist 07/27/2017)

Relator Migueal Zaragoza Fuentes and Evangelina Zaragoza divorced in Harris County. The trial court's decree awarded Zaragoza three El Paso properties, among other things. The court had found that relator owned the properties, even though they were titled in the name of Eagle Ridge Properties, which was wholly owned by Elsa Carrillo. Nonetheless, two days after the decree was issued –before it was final and before relator posted a supercedeas bond to appeal it – Zaragoza filed a copy of the decree with the El Paso county clerk and took possession of the property. Carrillo and Eagle Ridge obtained a temporary injunction in an El Paso court, arguing Zaragoza took possession in violation of Tex. R. Civ. Pro. 627, which mandates a 30-day waiting period before a divorce decree is final. Meanwhile, relator posted the supersedeas bond and moved the Harris County court to enforce the bond and order Zaragoza cease efforts to transfer title to the El Paso properties. The court denied the motion, and relator sought mandamus relief. The court found that Zaragoza did not complete execution of the El Paso properties – she took possession of them based on a decree that was not final and did not obtain a writ of execution. Thus, the court rejected her argument that the supersedeas bond came too late to have any effect on her possession of the properties. The court also found that the supersedeas bond preserves the status quo prior to the judgment; it does not merely halt any further attempts to take title to the property. The status quo was that Eagle Ridge owned the properties and Carrillo had possession. Thus, the court granted conditional mandamus relief, directing the trial court to order Zaragoza to withdraw the divorce decree as a muniment of title from the El Paso clerk and return possession to Carrillo. In re Miguel Zaragoza Fuentes, Houston 1st Court of Appeals, Case No. 01-16-00952-CV, 7/27/17.

01-16-00952-CV
JANE BLAND, JUSTICE

United States Court of Appeals, Fifth Circuit

Cartes v. Phillips, 17-20154 (5th Cir. 07/25/2017)

Cartes and Phillips were married, and produced a minor child (OCP). Cartes, the father, petitioned the court to order Phillips to return OCP to Paraguay, where she had lived with both Cartes and Phillips from October 2015 to October 2016. After a three-day bench trial, at which the district court heard testimony from Cartes and Phillips, their families, and others, the district court ruled in favor of Cartes, finding that Paraguay was OCP's habitual residence and that Phillips had wrongfully removed her to the United States. The court affirmed. It held that the district court did not clearly err in concluding that testimony and contemporaneous documents showed that Cartes and Phillips jointly intended to make Paraguay OCP's habitual residence, before Phillips and OCP returned to the United States. Cartes v. Phillips, Fifth Circuit, No. 17-20154, 7/25/17.

17-20154
STEPHEN A. HIGGINSON, CIRCUIT JUDGE

Court of Appeals of Texas, First District

Phillips v. State of Texas, 01-16-00653-CR (TexApp Dist 07/27/2017)

Police officer Meyers pulled over a car in a parking lot before dawn. He approached the vehicle and saw appellant Joseph Jamal Phillips behind the wheel with another man in the passenger seat. Although it was still dark out, Meyers testified he could clearly see appellant and the passenger in the light of his cruiser's spotlight. The car then pulled away and led Meyers and other officers on a high-speed chase for half an hour, ending when the car crashed and the two occupants exited and attempted to run away. Meyers caught the passenger and could be heard on his dash-cam video asking other officers if they caught the driver; in fact, another officer had caught appellant. Officers found a bag of marijuana in the car, and the trial court admitted evidence of the marijuana over appellant's objection that it was extraneous. The court also allowed an officer to testify about appellant's gang affiliation, partially based on his tattoos, over appellant's objection. The court convicted appellant of felony evading arrest and sentenced him to 50 years, based on enhancements. On appeal, he argued that the state provided insufficient evidence that he was driving the car, and also challenged the admission of the marijuana evidence and the gang affiliation testimony. The court, viewing the evidence in the light most favorable to the verdict, found that Meyers' testimony that he could see appellant in the driver's seat in the spotlight was sufficient to establish appellant as the driver. The court also noted that Meyers' repeated question on the dash-cam video about whether anyone caught "the driver" showed he was fully confident at the time that the other man was the passenger, not the driver, and thus the dash-cam footage supported his contention that appellant was the driver. The court also upheld the admission of the marijuana evidence, finding that the trial court properly ruled that it could establish a motive for fleeing police. The court found the expert witness on gangs was qualified, even though he worked a different area of Houston than the one where the offense occurred, because he established appellant was a member of a nationwide gang that he tracked. The court also found that gang tattoos have "distinctive meaning" and are "sound evidence" of affiliation. The court affirmed the trial court's judgment. Joseph Jamal Phillips v. The State of Texas, Houston 1st Court of Appeals, Case No. 01-16-00653-CR, 7/27/17.

01-16-00653-CR
EVELYN V. KEYES, JUSTICE

United States Court of Appeals, Fourth Circuit

C.A.U.S.E. v. Village Green, 04-16-00329-CV (4th COA. 07/26/2017)

Following approval at a board of directors meeting, appellee contracted with a local waste management company to be the sole and exclusive provider of waste collection services to the association and required individual residents to pay for waste collection services directly to the company. Thereafter, appellant sued asserting tortious interference with existing contract and prospective business relations, interference with easement rights, breach of the Texas Free Enterprise and Antitrust Act, and breach of restrictive covenants. The trial court granted appellee's motion for summary judgment concluding appellee had the authority to compel owners or residents to use the services of a service provider chosen by the board of directors. On appeal, the court reversed holding the homeowner's association declaration provisions relating to maintenance of the common areas was not unambiguous to compel residents to use a single trash collector selected by the board. Reading the declaration in its entirety, the court saw no clearly worded intent expressly allowing the board to choose one trash collector for the entire neighborhood to the exclusion of all others. Thus the court held that appellee failed to establish as a matter of law that it had the right to compel residents to contract with a single trash collector chosen by the board. C.A.U.S.E. v. Village Green Homeowners Assoc., Inc., San Antonio Court of Appeals, Case No.: 04-16-00329-CV, 07/26/2017.

04-16-00329-CV
REBECA C. MARTINEZ, JUSTICE

United States Court of Appeals, Fourth Circuit

State of Texas v. Ruiz, 04-16-00226-CR (4th COA. 07/26/2017)

Ruiz was working as a substitute teacher when students complained to administrators that he appeared to be taking upskirt pictures of female students. Upon being questioned by school administrators, Ruiz acknowledged that he "had a problem." The school administrator (Saenz) took possession of Ruiz's cell phone and stated that he was going to provide it to law enforcement. The phone was found to contain upskirt pictures, and Ruiz was charged with multiple counts of attempted production of sexual performance by a child. The trial court granted Ruiz's motion to suppress the pictures on the cell phone. The court reversed. It held that Saenz was a private citizen and not a law enforcement agent and that Ruiz had not shown that Saenz violated the law when he took the phone with the intent to providing it to law enforcement. State v. Ruiz, Court of Appeals, No. 04-16-00226-CR, 7/26/17.

04-16-00226-CR
PATRICIA O. ALVAREZ, JUSTICE

Court of Appeals of Texas, Sixth Appellate District

Bolton v. Fisher, 06-16-00082-CV (TexApp Dist 07/26/2017)

While walking to her mailbox, appellant was viciously attacked by two dogs owned by her neighbor. After undergoing seven surgeries as a result of the attack, appellant sued the neighbor and appellee, her landlord, and asserted separate causes of action for negligence, strict liability, public nuisance, and private nuisance. Among other things, appellant's petition alleged that appellee knew the neighbor was harboring aggressive dogs on her property, but failed to use reasonable care to prevent the attack. On motion, the trial court granted appellee's traditional and no-evidence summary judgment finding appellee owed no duty of ordinary care to appellant. On appeal, the court reversed concluding there were genuine issues of material fact as to whether appellee had actual knowledge of the presence of a vicious animal on the leased premises. Here, the case established that appellee saw the dogs prior to the attack, described them as aggressive dogs, and knew the neighbor was keeping them to serve as guard dogs. The court noted, however, that evidence must be presented of appellee's actual knowledge of a dog's dangerous propensities in order for a duty to exist to protect others from a lessee's dog. The court concluded appellant demonstrated appellee knew the guard dogs' were aggressive in nature sufficient enough to withstand a no-evidence motion for summary judgment. Bolton v. Fisher, Texarkana Court of Appeals, Case No.: 06-16-00082-CV, 07/26/2017.

06-16-00082-CV
RALPH K. BURGESS JUSTICE

Court of Appeals of Texas, Eighth District

Moore v. Munoz, 08-14-00254-CV (TexApp Dist 07/26/2017)

Lorenzo Munoz and Roger Franceware, two experienced truck drivers, were transporting a truck from El Paso County to Tennessee for co-appellant Moore Freight Services in 2010. The truck drifted of the road and crashed, killing both. Franceware drove full-time for Moore Freight and drove the truck out of El Paso, but Munoz, a prospective Moore employee, was at the wheel when it crashed. Their manager, co-appellant Charles Strader, assigned them a load a cargo bound for North Carolina to deliver en route to Tennessee. Some evidence suggested he had assigned it on behalf of co-appellant XMEX, a side trucking company he was starting up. Munoz's and Franceware's families sued Moore Freight, Strader, and XMEX for wrongful death. The trial court entered judgment against XMEX, and all three defendants appealed, challenging the jury's finding that each was a proximate cause of the accident. The court found Franceware was an employee of both Moore Freight and XMEX, but held that neither company was vicariously liable for the crash. The court found that Moore Freight could not be held liable for negligent supervision of Strader, finding that "at best" Moore Freight's failure to terminate Strader merely created the conditions that made the fatal accident possible. The court noted that the crash was caused by driver error – either fatigue, distraction, or a similar phenomenon – and that "[b]etter supervision or termination of Strader would have had no effect on the driver's conduct." The court found that Moore Freight's lax screening of Munoz did not contribute to the accident. The evidence showed that Munoz was an experienced driver in good health with no questionable background; thus, the court held that better screening would not have alerted Moore Freight to any potential issues. The court found Moore Freight could not be held liable for Franceware allowing Munoz to drive, because the evidence did not establish whether that directive came from Franceware, Strader, or some other party. The court found that XMEX could not be held accountable for reasons similar to Moore Freight: The company's actions were too remote to affect driver behavior at the time of the crash, and better screening of both drivers would not have aided XMEX. The court also found that Strader was not responsible for the accident through his assignment of the cargo shipment on a tight deadline, because the evidence shows the truck was at the speed limit and therefore was not rushing to meet the deadline, and because the truck would have headed out for Tennessee with or without the cargo. The court reversed the trial court's judgment and rendered a take-nothing judgment against the families. Moore v. Munoz, El Paso Court of Appeals, Case No. 08-14-00254-CV, 7/26/17.

08-14-00254-CV
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

Court of Appeals of Texas, Second District

Golliday v. State of Texas, 02-15-00416-CR (TexApp Dist 07/27/2017)

After a long night of drinking, the complainant met appellant Joshua Golliday and several other neighbors outside her apartment. She eventually invited appellant in to watch a movie. Complainant and appellant began kissing consensually. Complainant testified that appellant tried to touch her, at which point she asked him to leave and he raped her. Complainant also testified that she did not remember several details of the incident, including whether she initiated the kissing, whether her friend Ryan Bradshaw had been in the apartment before appellant, and whether Bradshaw drove her to the police station, although she remembered Bradshaw comforting her at the station. The court did not allow appellant to cross-examine the complainant about her relationship with Bradshaw or about statements she made to the nurse who examined her. The trial court convicted appellant of sexual assault and sentenced him to seven years of community supervision. An appeal followed, on grounds that the excluded testimony violated appellant's Constitutional rights to present a defense and to confront his accuser. The court found that appellant attempted to present a defense "that [c]omplainant's testimony, recollections, judgments of reality, and conduct rendered her claims of rape suspect and not worthy of belief." The court found that complainant's testimony was "contradictory and difficult to follow," and found that because appellant could not challenge complainant's statements about Bradshaw and to the nurse, he "was not allowed to offer his reasons for the contradictions." The court found the trial court's error harmed appellant because the jury "did not have the whole picture when determining [his] guilt." Before considering appellant's argument, the court rejected the state's argument that appellant did not properly preserve the issue for appeal. The court noted that the rules of preservation are different for improper admission of evidence and improper exclusion and that the state had argued on the standard for improper admission. The court reversed and remanded the trial court's judgment. Golliday v. The State of Texas, Fort Worth Court of Appeals, Case No. 02-15-00416-CR, 7/27/17.

02-15-00416-CR
LEE ANN DAUPHINOT, JUSTICE

Court of Appeals of Texas, First District

Fuentes v. Zaragoza, 01-17-00112-CV (TexApp Dist 07/27/2017)

The trial court granted a divorce between appellant Miguel Zaragoza Fuentes and Evangelina Zaragoza. Appellant filed notice of appeal, and the court set a supersedeas bond of $278 million. The appeals court eventually reduced the bond to $25 million, but while that issue was on appeal, Zaragoza moved for temporary orders for support and attorney's fees. After several rounds of litigation, the trial court ordered appellant to pay Zaragoza $250,000 in monthly support and $100,000 in monthly attorney's fees during appeal, awarded Zaragoza $6.4 million in past attorney's fees, awarded her use of certain properties, and appointed a receiver. An appeal followed; the appeals court granted appellant's mandamus request to stay the monetary orders and considered his challenge to the appointment of the receiver. The court found that the trial court did not have jurisdiction to appoint the receiver because the order came outside the 30-day window of the trial court's plenary power pursuant to Tex. Fam. Code §6.709. During the several rounds of litigation, the trial court had issued temporary orders for monthly support and attorney's fees within that 30-day window. The court found that the trial court could thus modify those orders after the appeals court ordered mandamus relief. However, the court found that when the issue came back to the trial court, the order for the receiver was a new order, and it came after the 30-day window closed. The court rejected Zaragoza's argument that §6.709 allows an order for a receiver, finding that this argument ignored the 30-day window elsewhere in §6.709. It also rejected her argument that the court can appoint a receiver at any time under In re C.F.M. (360 S.W.3d, 364), finding that the ruling in C.F.M. was based on §6.502 and is inapplicable when, as here, the divorce decree is final. The court also found that the receiver appointment did not fall under the court's continuing power to enforce prior orders, because that power "does not confer jurisdiction to materially change or supplement a prior judgment after plenary power has expired." The court held that the receiver appointment was void for lack of jurisdiction and vacated the judgment. Fuentes v. Zaragoza, Houston 1st Court of Appeals, Case No. 01-17-00112-CV, 7/27/17.

01-17-00112-CV
JANE BLAND, JUSTICE

Court of Appeals of Texas, First District

Ballard v. State of Texas, 01-15-00275-CR (TexApp Dist 07/25/2017)

A jury convicted appellant, a paralegal, of possession of child pornography and found true the allegations of an enhancement paragraph based on appellant's previously felony conviction for sexual assault. Appellant was assessed punishment at 13 years in prison. On appeal, appellant challenged the sufficiency of the evidence to support his conviction, denial of his motion to suppress evidence, and denial of his motion for a mistrial. The court affirmed finding the evidence was sufficient to support appellant knowingly possessed child pornography based upon a forensic examination of his home office computer. The court noted appellant was the primary user of the office computer and spent most of his time doing legal work on it. The fact that child pornography had been saved alongside legal documentation suggested that he knowingly possessed child pornography. Further, the jury reasonably could have rejected the alternative hypotheses raised by appellant to explain the child pornography found on his digital devices. The court further affirmed denial of a mistrial finding the witness testimony of alleged drugs and gun found during the search was not specifically elicited and not calculated to inflame the minds of the jury or of such damning character that it would be impossible to remove the harmful impression from the jury's mind. Finally, the court found appellant was not harmed by the officers' failure to provide him a copy of the warrant attachments and that probable cause existed for the search. Accordingly, the court affirmed the judgment of conviction. Walter Harvey Ballard, Jr. v. The State of Texas, Houston 1st Court of Appeals, Case No.: 01-15-00275-CR, 07/25/2017.

01-15-00275-CR
MICHAEL MASSENGALE, JUSTICE

Court of Appeals of Texas, Eighth District

Whataburger v. Cardwell, 08-13-00280-CV (TexApp Dist 07/26/2017)

The court previously held that the trial court erred in concluding that an arbitration agreement was unconscionable. Cardwell successfully argued, to the Texas Supreme Court, that the court erred in not addressing her other arguments against the arbitration agreement. Turning to those alternative arguments, the court held that Cardwell waived her substantive unconscionability argument by not raising it in her appellate briefs or responding to Whataburger's arguments on these issues. Turning to Cardwell's procedural unconscionability argument, the court held that the parties' alleged unequal bargaining power, typeface of the disputed provision and alleged lack of negotiation between the parties did not render the provision procedurally unconscionable. Finally, the court remanded Cardwell's illusory contract claim to the trial court for it to consider in the first instance. Whataburger Restaurants LLC v. Cardwell, Court of Appeals, No. 08-13-00280-CV, 7/26/17.

08-13-00280-CV
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

Court of Appeals of Texas, Fourteenth

Garza v. Harrison, 14-16-00615-CV (TexApp Dist 07/25/2017)

Appellant Rey Garza, a police officer for Navasota in Grimes County, signed an agreement with an apartment complex in Harris County to serve as a "courtesy officer" in exchange for free rent. The agreement stated that courtesy officers are not authorized to pursue suspects – instead, they are required to call police – and that they do not act as off-duty police officers. Nonetheless, when appellant saw Jonathen Santellana in his car with marijuana, he identified himself as a police officer and ordered Santellana out of the car. Santellana tried to drive off, trapping appellant between Santellana's car, the open door, and appellant's car in the next parking space. Appellant shot Santellana seven times, killing him, and his parents sued appellant for wrongful death. Appellant moved for dismissal on grounds he was acting in the course of scope of his Navasota employment and the proper defendant was the City of Navasota under the Texas Tort Claims Act. The trial court denied the motion, finding a question of fact for a jury as to whether appellant was acting as a police officer or as a courtesy officer, and an appeal followed. The court found that the Texas Tort Claims Act defines "scope of employment" as the performance of "the duties of an employee's office." The court found that a police officer's general duty to act extends only to the geographic limits of his jurisdiction under Tex. Code Crim. Proc. art 2.13(a), and thus appellant could have been acting in the scope of his Navasota employment only if he had been assigned a specific task, which he had not. The court distinguished between the authority to act and the duty to act, and found that although appellant might have had statutory authority to act, he had no duty for Texas Tort Claims Act purposes. Thus, the court held that appellant was not acting in the scope of his Navasota employment during the incident. The court affirmed the order denying appellant's motion to dismiss. Garza v. Harrison, Houston 14th Court of Appeals, Case No. 14-16-00615-CV, 7/25/17.

14-16-00615-CV
WILLIAM J. BOYCE, JUSTICE

United States Court of Appeals, Fourth Circuit

Harris v. State of Texas, 04-16-00681-CR (4th COA. 07/26/2017)

A police officer pulled over a car for a minor traffic violation. Appellant Demoria Harris, a felon, was a passenger in the car. The officer searched the car after detecting an odor of marijuana, and found two handguns, one in a duffel bag and one under the driver's seat. The officer testified that the duffel bag was between appellant's feet, but testified that nothing in the bag linked appellant to the gun and he had "no idea" if appellant owned it. The trial court convicted appellant of possession of a firearm by a felon and sentenced him to 15 years. An appeal followed, on grounds that the evidence did not establish appellant knowingly or intentionally possessed the firearm. The court found that because the gun was not on appellant or in his exclusive possession, the state had to affirmatively link him to the gun. The court noted that the gun was not in plain view, and thus, under Williams v. State (235 S.W.3d 742), it did not create an affirmative link merely by its proximity to appellant. The court also found that the type of weapon, the odor of marijuana, and appellant's criminal history all failed to establish an affirmative link. The court rejected the state's argument that the jury could have inferred ownership from appellant's calm, cooperative demeanor during the traffic stop, which the state suggested was evidence that appellant knew he was caught. The court called this theory "mere speculation, which is not evidence." The court held the evidence was insufficient to convict appellant, reversed the trial court's judgment, and rendered a judgment of acquittal. Harris v. The State of Texas, San Antonio Court of Appeals, Case No. 14-16-00681-CR, 7/26/17.

04-16-00681-CR
MARIALYN BARNARD, JUSTICE

Court of Appeals of Texas, Fourteenth

Moring v. Inspectorate, 14-16-00898-CV (TexApp Dist 07/25/2017)

Appellant Scotty Moring worked for oil and mineral inspection company Inspectorate America. Appellant was based in Houston from 2012 until 2014, serving Texas customers. He moved to Louisiana in 2014 and left to work for competitor Intertek in 2015. At Intertek, he served many of the same Texas clients as he did for Inspectorate. Inspectorate alleged that appellant took customer lists and pricing with him, and sued appellant in Texas for misappropriation of trade secrets and related claims. Appellant filed a special appearance, arguing Texas courts did not have personal jurisdiction over him because he lived and worked in Louisiana. The court denied the special appearance, and an appeal followed. The court found that appellant had purposeful contacts with Texas via his work for Texas customers, and he could have foreseen that any disputes about these contacts would be heard by Texas courts. The court held that Inspectorate's claims arose from those contacts and thus had a substantial connection to them. The court also held that hearing the claims in Texas did not offend the notion of fair play, noting that appellant chose to travel to Texas to serve his customers and thus could travel for court appearances as well. In a separate issue, appellant argued that Inspectorate had waived its objection to his special appearance because, after the trial court had originally granted appellant's special appeal, Inspectorate moved for rehearing rather than appealing the decision. The court found that even if Inspectorate waived its objection, waiver of appeal would not prohibit the trial court from rehearing the issue. The court overruled both of appellant's issues and affirmed the trial court's judgment. Moring v. Inspectorate, Houston 14th Court of Appeals, Case No. 14-16-00898-CV, 7/25/17.

14-16-00898-CV
KEM THOMPSON FROST, CHIEF JUSTICE

Court of Appeals of Texas, Third District

In re Volkswagen, 03-17-00478-CV (TexApp Dist 07/28/2017)

The state sued to enforce the Texas Clean Air Act against Volkswagen based on issues with its diesel engines. Later, several counties also filed TCAA enforcement claims, which were consolidated in a multi-district litigation action. The state pleaded for the MDL court to abate the counties' claims, the MDL court denied the plea, and the state filed for mandamus relief. The appeals court found that the state acquired dominant jurisdiction in all 252 Texas counties when it filed its claims, and the MDL court was required to abate the claims. The court rejected the counties' argument that the statutory MDL scheme superseded common-law dominant jurisdiction. The court found that the statute was intended for cases of separate injuries all arising from the same fact pattern, and that it does not control when the competing claims involve the same controversy. "[T]hese TCAA enforcement actions differ from the typical MDL cases in that each local-government action seeks, by definition, to punish the very same violations that the State could, using the same penalty and enforcement mechanism set forth in the TCAA and including the State as a necessary party as required by the TCAA," the court found. The court also rejected the counties' argument that mandamus relief is unwarranted because no harm would come to the state if the MDL action proceeded; the court found that dominant jurisdiction mandates an abatement. The court granted conditional mandamus relief, directing the MDL court to grant the abatement. In re Volkswagen, Austin Court of Appeals, Case No. 03-17-00478-CV, 7/28/17.

03-17-00478-CV
JEFF ROSE, CHIEF JUSTICE

Court of Appeals of Texas, Seventh District

Anderson v. Stiniker, 07-16-00214-CV (TexApp Dist 07/26/2017)

Following the filing of a wrongful death and health care liability suit by appellees, appellant moved for partial summary judgment on the ground that he was a "public servant" covered by Tex. Civ. Prac. & Rem. Coe §108.003 which limited his personal liability. The trial court denied the motion and the underlying permissive appeal was instituted. On appeal, the court was asked to determine, as a case of first impression, whether a licensed physician who provided emergency or postemergency services in a hospital owned or operated by a local government unit, but who was not employed by that hospital, was a "public servant" whose personal liability under certain circumstances was capped at $100,000 pursuant to Tex. Civ. Prac. & Rem. Code §108.003. The court reversed finding that a physician under those circumstances was a public servant for purposes of the statute. The court noted the legislature, upon amended the statutory section, expressed a clear intent to include licensed physicians who provide emergency or postemergency stabilization services to patients at a hospital owned by a unit of local government in that category of individuals protected by the limitations of liability provisions. Although the statute has conflicting inclusive and exclusive language, the court found the sections can be reconciled by simply recognizing that they were not mutually exclusive. Accordingly, the court reversed denial of appellant's motion for partial summary judgment. Anderson v. Stiniker, Amarillo Court of Appeals, Case No.: 07-16-00214-CV, 07/26/2017

07-16-00214-CV
PATRICK A. PIRTLE, JUSTICE

United States Court of Appeals, Fifth Circuit

NewCSI v. Staffing, 16-50009 (5th Cir. 07/25/2017)

In August 2013, Staffing 360 acquired Control Solutions International from its parent company, NewCSI, pursuant to a stock purchase agreement. The stock purchase agreement required Staffing 360 to calculate a "deferred tax benefit" by March 2014, and to pay 50-percent of the deferred tax benefit to NewCSI by April 2014. A dispute arose over this provision and Staffing 360 did not make any payment to NewCSI. NewCSI sued Staffing 360 for breach of contract. The jury found that Staffing 360 breached the provision, causing approximately $154,000 in damages. The trial court then awarded NewCSI approximately $1.3 million in damages. The additional amount was because the stock purchase agreement required Staffing 360 to pay liquidated damages to NewCSI upon the occurrence of certain "adjustment events," one of which was the failure to abide by the other terms in the agreement. The court affirmed. It held that the jury's verdict was supported by trial testimony and evidence. The court also rejected Staffing 360's argument that the liquidated damages provision was an unenforceable penalty, finding that Staffing 360 failed to timely raise this argument in the district court and, in any event, the liquidated damages clause was not unenforceable as a matter of law. The court finally held that the district court correctly calculated the total amount of damages. NewCSI, Inc. v. Staffing 360 Solutions, Inc., Fifth Circuit, No. 16-50009, 7/25/17.

16-50009
JENNIFER WALKER ELROD, CIRCUIT JUDGE

United States Court of Appeals, Fourth Circuit

Dwyer v. State of Texas, 04-15-00805-CR (4th COA. 07/26/2017)

A jury convicted appellant Edward James Dwyer, Jr., of two sex crimes against his minor daughter, C.D. The continuous sexual abuse conviction was based on incidents of touching her genitals between January 2011 and June 6, 2012. The aggravated sexual assault charge was based on an incident of penetrating her with his finger on June 12, 2012. On appeal, appellant argued that the trial court's jury instructions could have permitted the jury to convict on both charges based on a single incident, in violation of Double Jeopardy protections. The instruction was that "the State is not required to prove the exact dates alleged in the indictment." The court rejected appellant's argument that the court thereby instructed the jury to disregard the dates of the alleged incidents, but the court acknowledged the instruction raised a theoretical possibility of convicting on a single incident. However, it also found that evidence of the alleged dates, and therefore of separate incidents, was clear: The state chose June 6, 2012, as the cut-off for the first charge because C.D.'s mother died that day, and C.D.'s testimony showed the abuse escalated after her death. The court thus held that any error was not harmful. In another issue, appellant argued the trial court violated his Constitutional rights by denying his request for potential jurors to stay in their assigned seats while his attorney made strikes. Appellant argued he did not know who was who without being able to see the venire panel and thus could not intelligently confer with his attorney. The court reasoned that appellant could have made notes or other memory aids, and thus the trial court was within its broad authority to conduct jury selection. In another issue, appellant argued evidence related to the earlier incidents was insufficient to show that he touched C.D. with the intent to gratify himself. Appellant had argued that C.D. equivocated in her testimony; however, the court found that because Dwyer told police he was aroused at least once or twice while touching C.D., a rational jury could find that evidence sufficient. The court affirmed the trial court's judgment. Edward James Dwyer, Jr., v. The State of Texas, San Antonio Court of Appeals, Case No. 04-15-00805-CR, 7/26/17.

04-15-00805-CR
LUZ ELENA D. CHAPA, JUSTICE

Court of Appeals of Texas, Second District

Busby v. Harvey, 02-16-00311-CV (TexApp Dist 07/27/2017)

Appellants owned a barrel-racing horse whom they brought to appellee for treatment. Appellants alleged that the treatment resulted in severe injuries to one of the horse's legs which destroyed her racing career and significantly reduced her breeding value. Based on these facts, appellants filed suit for negligence, gross negligence, veterinary malpractice, and breach of contract. Appellant further moved to disqualify appellee's attorney alleging that before appearing as counsel, the attorney had obtained confidential information about the case from appellants when appellants approached him as an expert witness to testify in support of their claims. The trial court denied disqualification and signed a take-nothing judgment on appellants' claims. On appeal of the disqualification denial, the court affirmed holding it need not examine whether the rules or principles flowing from the rules prevented counsel's representation. The court found appellants' failed to sustain their burden of showing actual prejudice from counsel's representation as appellants received no strategic benefit from communications with counsel that was later used during his representation of appellees. Further, counsel never represented appellants nor was even a prospective counsel for appellants whom indicated they were already represented during the communication. As the record did not disclose any strategic or tactical advantage that counsel received and used based on his limited communication with appellants, the court affirmed denial of disqualification. Busby v. Harvey, Fort Worth Court of Appeals, Case No.: 02-16-00311-CV, 07/27/2017.

02-16-00311-CV
TERRIE LIVINGSTON, CHIEF JUSTICE

Court of Appeals of Texas, Fifth

In Re Paxton, 05-17-00507-CV (TexApp Dist 05/30/2017)

Judge George Gallagher presided over the state's criminal case against Relator Warren Kenneth Paxton, Jr. in Collin County. Gallagher granted the state's motion to transfer the case to Harris County, and relator advised Gallagher that he did not consent to Gallagher continuing to preside over the case in Harris County. Relator also moved for the Collin County clerk to transfer files to Harris County. Gallagher, however, scheduled the trial in Harris County and invited the parties to tour the Harris County facilities. Furthermore, the Collin County clerk declined to transfer files, advising relator that doing so might run afoul of Gallagher's directions. Relator sought mandamus relief, on grounds that a judge who transfers venue may not preside over the case without the consent of the state, the defendant, and defendant's counsel. The court found that a change of venue order "immediately and automatically" vests jurisdiction in the new court. The court also found that under Tex. Code Crim. Proc. Art. 31.09, a judge who transfers venue cannot continue to preside over the case without consent of all parties. Because defendant withheld his consent, the court held that all orders Gallagher issued after the change of venue were void. The court thus granted conditional mandamus relief, ordering Gallagher to vacate the scheduling order, any express or implied orders preventing the Collin County clerk from transferring case files, and any other orders issued after the change of venue. In Re Paxton, Dallas Court of Appeals, Case No. 05-17-00507-CV, 5/30/17.

05-17-00507-CV
ROBERT M. FILLMORE, JUSTICE

Supreme Court of Texas

United Scaffolding v. Levine, 15-0921 (TexApp Dist 06/30/2017)

Levine, a pipefitter, alleged that he slipped on scaffolding, injuring his neck. He sued United Scaffolding, Inc. (USI), claiming that it improperly constructed the scaffold and failed to remedy or warn of the dangerous condition on the scaffold, causing his injury. The trial court submitted a general-negligence question to the jury, and USI neither offered a premises liability question nor objected to the general-negligence question. The jury allocated 100% of the responsibility to USI and awarded Levine nearly $2 million in past and future damages. USI filed a motion for judgment notwithstanding the verdict, arguing that that the trial court improperly submitted a general-negligence question to the jury when Levine's claim sounded in premises liability. Levine asserted that submission of the improper theory of recovery required the trial court to render a take-nothing judgment. The trial court denied the motion and the court of appeals affirmed. The court reversed. It held that USI properly preserved error by raising its argument in its motion for judgment notwithstanding the verdict. It further held that the nature and circumstances of Levine's injury, Levine's allegations against USI, and the evidence presented at trials showed that Levine's claim was premised on USI's having the right to control the scaffold at the time Levine allegedly suffered injury. As a result, the court held that, because Levine's claim sounded in premises liability, the general-negligence findings could not support Levine's recovery. United Scaffolding, Inc. v. Levine, Supreme Court, No. 15-0921, 6/30/17

15-0921
PAUL W. GREEN, JUSTICE

United States Court of Appeals, Fifth Circuit

USA v. Reyes-Ochoa, 15-41270 (5th Cir. 06/30/2017)

Appellant appealed his 41-month within-guidelines sentence imposed following his guilty plea conviction and sentence for illegal reentry after deportation. He contended, for the first time on appeal, that the district court committed reversible plain error by imposing a 16-level "crime of violence (COV)" guidelines enhancement based on his prior Virginia convictions for statutory burglary. Following the Supreme Court's ruling in Mathis v. United States, 136 S. Ct. 2243 (2016), appellant argued the Virginia statute underlying his sentencing enhancement did not satisfy the categorical approach because the statute included offenses broader than generic "burglary of a dwelling." Therefore, he contended that his COV enhancement based on his prior Virginia burglary convictions was an error that was plain given Mathis's "clear directions on divisibility." In contrast, appellee argued there was no error, plain or otherwise, because the Virginia statute was divisible and therefore subject to the modified-categorical approach. Applying the Mathis required the court to determine "whether 'listed items' in a statute '[were] elements or means.'" The court vacated the sentence holding Virginia Code §18.2-90 was an indivisible statute that swept broader than generic "burglary of a dwelling;" it was a clear or obvious error to impose a COV enhancement based on appellant's convictions under that statute. As a result of this error, the court further found appellant showed a reasonable probability of a different outcome absent the error which had an effect on his substantial rights. Finally, because of how substantial the disparity was between the erroneous sentence and the proper guidelines range, the court remanded the matter for resentencing. U.S. v. Jose Darwin Reyes-Ochoa, Fifth Circuit, Case No.: 15-41270, 06/30/2017

15-41270
LESLIE H. SOUTHWICK, CHIEF JUDGE

United States Court of Appeals, Fifth Circuit

Hawk v. Engelhart, 16-20641 (5th Cir. 07/19/2017)

After filing for Chapter 7 bankruptcy, the Hawks claimed an exemption for funds held in an individual retirement account. The Hawks sought to exempt the funds from the bankruptcy estate because tax-exempt or tax-deferred assets held in a qualifying retirement account are generally exempt from creditors' claims under Texas law. However, the Hawks then withdrew the funds from the IRA, did not roll them over into another IRA and instead used the funds for daily living expenses. Because Texas law provides that funds withdrawn from a retirement account remain exempt only if rolled over into another retirement account within 60 days, the bankruptcy court held that the funds had lost their exempt status and ordered that the Hawks turn over the funds to the trustee. The court affirmed. The court relied on its precedent interpreting the Texas homestead exemption, in which the court had held that, where debtors failed to reinvest the proceeds in another Texas homestead within the statutory time period, those proceeds lost their exemption, freeing the trustee to reach the proceeds as part of the bankruptcy estate. The court held that, when the Hawks withdrew funds from the IRA, their interest in those funds changed from an unconditionally exempted interest to a conditionally exempted interest and that, when the Hawks failed to deposit the funds into another retirement account within 60 days of withdrawal, the conditional exemption expired, and the Hawks lost their right to withhold the funds from the estate. Hawk v. Engelhart, Fifth Circuit, No. 16-20641, 7/19/17.

16-20641
EDWARD C. PRADO, CIRCUIT JUDGE

Court of Appeals of Texas, Fifth

Enterprise v. Energy, 05-14-01383-CV (TexApp Dist 07/18/2017)

Appellant Enterprise Products Partners and energy company ETP signed preliminary agreements to develop a pipeline delivering oil south from Cushing, OK, to Houston. However, after the parties fell well short of securing commitments from shippers for the volume of oil they would need, appellant terminated the agreement. The next day, appellant began working with Enbridge about extending its Alberta-to-Cushing pipeline to Houston. The two eventually modified a northbound pipeline, the Seaway pipeline, that appellant and ETP considered for its project. ETP sued Enterprise for breach of joint enterprise and breach of fiduciary duty, alleging it usurped a business opportunity. The trial court awarded ETP $319 million in damages found by the jury, plus interest, and $150 million in disgorgement. An appeal followed on several issues, one of which was that appellant and ETP did not form a partnership because the agreements they signed contained unmet conditions precedent such as approval from the companies' boards of directors. ETP argued that despite the unmet conditions, appellant formed a partnership through its conduct. The court found that a partnership is an association to conduct business for profit under Bus. Orgs. Code §152.051(b), and that the preliminary agreements did not discuss profit – they only discussed whether to move to the next stage of the project. The court found that under Thompson v. Thompson (500 S.W.2d 203), ETP had to obtain a jury finding that the parties waived the conditions precedent, which it did not do. The court reversed the trial court's judgment and rendered a take-nothing judgment against ETP. Enterprise v. Energy Transfer Partners, Dallas Court of Appeals, Case No. 05-14-01383-CV, 7/18/17.

05-14-01383-CV
LANA MYERS, JUSTICE

Court of Appeals of Texas, Second District

Casas v. State of Texas, 02-16-00122-CR (TexApp Dist 07/20/2017)

A Fort Worth police officer clocked appellant Carlos Enrique Casas driving 63 mph in a 35 mph zone. He pulled over appellant and arrested him for driving under the influence. Appellant moved before trial to exclude evidence from the stop, claiming the officer told him he had been going 43 mph and therefore the officer did not have probable cause for arrest. The court denied the motion, noting appellant had been speeding even at 43. Appellant entered a plea bargain for a suspended sentence and 12 months of community supervision, and the court also assessed court costs of $395. On appeal, appellant challenged the denial of the pre-trail motion and the court costs. On the pre-trial motion, appellant alleged the trial judge was biased based on his statement "I actually know where the policeman sits to some extent" in reference to the area where appellant was pulled over. Appellant relied on reversals in two previous cases, one where a judge happened to witness the incident at issue (Gentry v. State, 2006 WL 932057) and another where a judge visited the site of a police stop (State v. Haworth, 2017 WL 1737953). The court distinguished the present case because "the trial court did not have personal knowledge of a disputed fact that was outside the record." Furthermore, unlike the other two cases, the trial judge here referenced specific evidence in the record as the basis of his ruling, rather than his personal knowledge. The court overruled this issue. In his second issue, appellant argued the $100 portion of court costs for "emergency management services" was unconstitutional because it does not fund legitimate criminal-justice purposes. The court found that the Court of Criminal Appeals struck down similar fees on grounds that they do not directly fund the justice system in Salinas v. State (2017 WL 915525). The court modified the judgment to remove $100 from court costs and affirmed the modified judgment. Carlos Enrique Casas v. The State of Texas, Fort Worth Court of Appeals, Case No. 02-16-00122-CR, 7/20/17.

02-16-00122-CR
LEE GABRIEL, JUSTICE

Court of Appeals of Texas, Ninth District

Selby v. State of Texas, 09-16-00287-CR (TexApp Dist 07/19/2017)

Appellant pled guilty to aggravated sexual assault of a child; the trial court deferred an adjudication of guilt and placed appellant on community supervision for a period of ten years. Subsequently, appellee filed a motion to revoke the unadjudicated community supervision alleging appellant had violated the conditions by viewing or possessing sexually stimulating or sexually oriented materials and having contact with a minor. Appellant pled "true" to both violations and the trial court sentenced him to a term of ninety-nine years in prison. With new counsel, appellant moved for a new trial alleging that, among other things, appellee did not file a valid motion to revoke prior to the expiration of his community supervision and his pleas of "true" were involuntarily and unknowingly made as a result of ineffective assistance of counsel. The trial court denied the motion and found no evidence of ineffective assistance by appellant's trial counsel. On appeal, the court initially found the motion to revoke was timely filed and the trial court had jurisdiction to revoke appellant's probation. However, the court reversed finding the evidence supported appellant's contention that his counsel's performance fell below an objective standard of reasonableness and such deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984) The court noted trial counsel lacked a firm command of the governing law which did not require a probationer from making incriminating statements or participating in a polygraph examination. Further, but for counsel's unprofessional error, there existed a reasonable probability that the result of the proceeding would have been different. Accordingly, the court reversed and remanded. Rickie Wayne Selby v. The State of Texas, Beaumont Court of Appeals, Case No.: 09-16-00287-CR, 07/19/2017.

09-16-00287-CR
STEVE McKEITHEN, CHIEF JUSTICE

United States Court of Appeals, Fifth Circuit

Farber v. Crestwood, 16-20742 (5th Cir. 07/17/2017)

In May 2015, after two companies (Midstream and Equity) entered into a merger agreement, an individual (Aron) filed a putative class action, alleging that Midstream and Equity violated the Securities Exchange Act because the preliminary proxy filed with the SEC omitted material facts. Two days before a hearing on Aron's motion to enjoin the shareholder vote, the parties reached a settlement for additional disclosures, confirmatory discovery, and attorneys' fees. One class member (Duggan) objected to the settlement, but filed his objection too late. The district court awarded Aron attorneys' fees over Duggan's objection. Duggan appealed. The court held that it lacked jurisdiction over the appeal because Duggan, a nonparty, non-intervenor, waived his right to appeal by filing an untimely, procedurally deficient objection. Farber v. Crestwood Midstream Partners, L.P., Fifth Circuit, No. 16-20742, 7/17/17.

16-20742
E. GRADY JOLLY, CIRCUIT JUDGE

Court of Appeals of Texas, Eighth District

Jones v. State of Texas, 08-14-00122-CR (TexApp Dist 07/19/2017)

Appellant was charged with five counts of indecency with a child but was found guilty of only two counts concerning improper sexual contact; appellant was sentenced to three- and four-year terms respectively which were to run consecutively. Appellant moved for a new trial claiming ineffective assistance of counsel. The trial court denied the motion but failed to make any findings of fact on the record. To prevail on a claim of ineffective assistance of counsel, the defendant must satisfy a two-pronged test: (1) counsel's performance fell below an objective standard of reasonableness, and (2) but for counsel's unprofessional error, there was a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668 (1984) On appeal, the court affirmed holding appellant failed to show how counsel's actions were deficient or that, but for the alleged error of counsel, there was a reasonable probability that the outcome of his trial proceedings would have been different. The court noted that counsel secured funds for investigative services, had a command of the law, and properly filed pre-trial motions such that her conduct did not fall below an objective standard of reasonableness. Further, the court found that counsel's failure to inform the jury of the significant consequences of being found guilty of sex-based offenses did not demonstrate that the result of the punishment proceedings would have been different nor was such conduct so outrageous that no competent attorney would have engaged in it. Accordingly, the court affirmed holding counsel's conduct was reasonable and the outcome would not have been different if the alleged errors were considered unprofessional. Jimmie Jones, Jr. v. The State of Texas, El Paso Court of Appeals, Case No.: 08-14-00122-CR, 07/19/20117.

08-14-00122-CR
YVONNE T. RODRIGUEZ, JUSTICE

Court of Appeals of Texas, Fourteenth

Cooper Valves v. ValvTechnologies, 14-16-00879-CV (TexApp Dist 07/20/2017)

Co-appellant Barry Hoeffner left his position at valve manufacturer VTI to become president of co-appellant Cooper Valves, also a valve manufacturer. Hoeffner worked at VTI from 1997 until 2000, when he left for another job, and then from 2001 until Cooper hired him in 2015. Hoeffner signed confidentiality agreements with VTI upon his 1997 hire and his 2001 re-hire, along with a non-compete agreement in 1997. However, soon after starting work for Cooper, he began contacting VTI clients. VTI sued Cooper and Hoeffner and the trial court granted an injunction prohibiting Cooper, among other things, from using "any of [VTI's] Confidential and Trade Secret information." An appeal followed. In one issue, both appellants argued the trial court erred by enforcing the 1997 agreements. The court found that the non-compete agreement expired after Hoeffner left VTI the first time. It rejected VTI's argument that Hoeffner's other employment constituted a leave of absence, finding their was no expectation that Hoeffner would return and that VTI did not hold his job open for him. It also found that any oral agreement to extend the 1997 non-compete agreement was prohibited by its own terms, and furthermore ran afoul of the Statute of Frauds because it could not be performed in one year. The court also found the injunction was vague and overbroad because it did not put Cooper on notice of specific prohibited acts. The court partially reversed the trial court's judgment and remanded for further proceedings. Cooper Vales v. ValvTechnologies, Inc., Houston 14th Court of Appeals, Case No. 14-16-00879-CV, 7/20/17.

14-16-00879-CV
J. BRETT BUSBY, JUSTICE

United States Court of Appeals, Fifth Circuit

McCarty v. Hillstone, 16-11519 (5th Cir. 07/18/2017)

While dining at a restaurant owned by Hillstone, McCarthy, who was using crutches after a recent surgery on her heel, allegedly slipped on a substance outside the restroom, causing her to fall. She sued Hillstone, asserting a premises liability claim. The district court granted Hillstone's motion for summary judgment, holding that McCarthy had not established that Hillstone had actual or constructive knowledge of the restaurant floor's allegedly dangerous condition. The court affirmed. It held that McCarthy had not established that Hillstone placed the substance on the floor, or that Hillstone actually knew that the substance was on the floor. The court also agreed that, because McCarthy had not established how long the substance was on the floor, it had not shown that it was more likely than not that the condition existed long enough to give Hillstone a reasonable opportunity to discover it. McCarty v. Hillstone Restaurant Group, Inc., Fifth Circuit, No. 16-11519, 7/18/17.

16-11519
JAMES E. GRAVES, JR., CIRCUIT JUDGE

Court of Appeals of Texas, Thirteenth

Super Starr v. Fresh Tex, 13-16-00663-CV (TexApp Dist 07/20/2017)

The parties executed a distribution agreement, and formed an LLC, for the development and sale of hybrid papayas. Following an unsuccessful attempt to renegotiate the expired exclusivity provision and a promotion email to customers, appellee filed suit asserting, among other things, breach of the partnership agreement, breach of fiduciary duty, trade secrets, and theft. Appellee then sought, and the trial court signed, a temporary restraining order. After an evidentiary hearing, the trial court signed a temporary injunction order finding appellee "had demonstrated a probable right to relief through its claims" against appellants. It granted injunctive relief mandating that appellants continue the exclusive business relationship, prohibit conduct deemed competitive, and mandated the preservation of electronic information. On appeal, the court reversed in part finding appellee presented legally insufficient evidence to support probable right to relief against appellants on its claims for partnership, joint venture, and joint enterprise, on which the exclusivity restrictions in the temporary injunction order were premised. Accordingly, the trial court abused its discretion in granting the exclusivity restrictions. The court further found the evidence was insufficient to support claims for breach of fiduciary duty, tortious interference and aiding and abetting a breach. However, the court affirmed that the evidence was sufficient to support injunctive relief on appellee's trade secrets claim as the LLC was technically still in existence and trade secrets must be safeguarded. Super Starr International, LLC v. Fresh Tex Produce, LLC, Corpus Christi-Edinburg Court of Appeals, Case No.: 13-16-00663-CV, 07/20/2017.

13-16-00663-CV
NELDA V. RODRIGUEZ, JUSTICE

United States Court of Appeals, Fourth Circuit

BoRain v. Hashmi, 04-16-00501-CV (4th COA. 07/19/2017)

Syed Hashmi owned a $122,400 real estate lien that he agreed to sell to Northeastern Capital for $83,477. Northeastern in turn agreed with appellant BoRain Capital to resell the lien for a higher amount. Before closing, a hacker accessed Hashmi's email account, and provided the closing firm with fraudulent bank account information. The closing firm, West and West, inadvertently deposited the funds in the hacker's account rather than Hashmi's. Hashmi sued West and West for breach of fiduciary duty and appellant for breach of contract. The jury found that West and West was 100 percent at fault, Hashmi accepted a settlement offer from West and West for $81,500, and he then moved for judgment notwithstanding the verdict on the breach of contract claim against appellant. The trial court awarded him $81,362 plus interest and $41,101 in attorney's fees, reduced by the $81,500 he received from West and West. An appeal followed, arguing, among other things, that the trial court erred by disregarding the jury's finding that Hashmi did not have a contract with appellant. The closing documents that West and West prepared showed only a transfer of the lien from Hashmi to appellant. However, the court found that several pieces of evidence established two separate contracts, one between Hashmi and Northeastern and the other between Northeastern and appellant. The court found Hashmi signed an agreement with Northeastern, emails between Hashmi and Northeastern discussed a certain price, and emails between Northeastern and appellant discussed a different price. The court reversed the trial court's judgment and entered a take-nothing judgment against Hashmi. BoRain v. Hashmi, San Antonio Court of Appeals, Case No. 04-16-00501-CV, 7/19/16.

04-16-00501-CV
KAREN ANGELINI, JUSTICE

Court of Appeals of Texas, Fourteenth

Garcia v. State of Texas, 14-16-00242-CR (TexApp Dist 07/20/2017)

The state indicted appellant Freddy Garcia in 1987 for sexually abusing his step-daughter, who was around 11 at the time, over the course of the previous year. He was arrested after his wife found him in the step-daughter's room with his pants down. Appellant fled from authorities and was not captured until 2014. Appellant was extradited to Texas in January 2015 and tried in February 2016. At trial, the step-daughter testified as to one incident of abuse, separate from the day appellant was caught. The court convicted appellant of aggravated sexual assault of a child and sentenced him to 45 years, and an appeal followed on two issues. In the first, appellant argued he was denied his right to a fair trial. The court, using the four-factor balancing test from Barker v. Wingo (407 U.S. 514), found that only the length of delay weighed against the state. The court found that the reason for the 27-year delay between the indictment and appellant's extradition to Texas was not bad faith by the state, noting that appellant used a false name and social security number at least once during that period and that the state conducted national searches for appellant. The court also found appellant "sat on his rights for more than 27 years" rather than asserting his right, and that appellant was not prejudiced by the delay because he was imprisoned for only six months since 1987. Weighing the factors, the court found no violation of appellant's right to a speedy trial. In his second issue, appellant argued the court erred by failing to require the state to elect which incident it sought conviction on at the close of its case-in-chief. The state argued that no election was needed because it provided evidence of only one incident – the one in the step-daughter's testimony. But the court found that the evidence about the separate incident that prompted arrest, including evidence of semen found on the step-daughter during a sexual-assault exam, could have established that a second incident took place. The court also found the failure to elect harmed appellant, because the jury might not have been unified in its decision about which specific act of sexual abuse appellant committed. The court reversed the trial court's judgment and remanded for a new trial. Freddy Garcia v. The State of Texas, Houston 14th Court of Appeals, Case No. 14-16-00242-CR, 7/20/17.

14-16-00242-CR
WILLIAM J. BOYCE, JUSTICE

Court of Appeals of Texas, Fourteenth

Nelson v. Gulf Coast, 14-16-00589-CV (TexApp Dist 07/20/2017)

Appellee filed the underlying suit for theft, conversion and fraud by nondisclosure alleging that appellants used her DEA number to order medications and contrast agents without her knowledge or permission. Appellants would allegedly then sell the medications and contrast agents to end users, such as medical drug companies, for a profit. Appellants moved for a no-evidence summary judgment; following their failure to respond, the trial court granted summary judgment. Appellee subsequently moved for a new trial contending the failure to respond was due to a calendaring error. The trial court granted a new trial and entered final judgment in favor of appellee. On appeal, appellants contend the evidence showed the statute of limitations period expired before the lawsuit was filed and granting the motion for a new trial was solely premised on the negligent inaction of appellee's counsel. The court affirmed holding that, because appellants failed to timely file a statement of points or issue, it was presumed the record evidence supported the trial court's determination that the statute of limitations did not bar the claims. Further, appellants failed to argue that the trial court's order was void or that the trial court erroneously concluded the jury's answers to special issues were irreconcilably in conflict. As such, it was not error of the court to grant a new trial and the court affirmed the final judgment. Nelson v. Gulf Coast Cancer and Diagnostic Center, Houston 14th Court of Appeals, Case No.:14-16-00589-CV, 07/20/2017

14-15-01031-CV
KEN WISE, JUSTICE

Court of Appeals of Texas, First District

London v. State of Texas, 01-13-00441-CR (TexApp Dist 06/27/2017)

Appellant Joshua London pled guilty to cocaine possession. He had a court-appointed attorney and did not attempt to subpoena witnesses. The trial court sentenced him to 25 years and $329 in court costs, with $35 of the cost based on the state summoning seven witnesses. Appellant challenged the statutory $5-per-witness fee on appeal, claiming it was unconstitutional as applied to him because he was indigent. The court found that the statute, Tex. Code Crim. Proc. art. 102.011, violates the Compulsory Process clause only to the extent that it prevented appellant from summoning witnesses favorable to him. The court rejected his argument that "constructive notice" of the $5 fee prevented him from preparing an adequate defense, noting that appellant did not identify any witnesses he could have called and that he was not assessed the fee until after he pled guilty. The court affirmed the trial court's judgment. Joshua London v. The State of Texas. Houston 1st Court of Appeals, Case No. 01-13-00441-CR, 6/27/17.

01-13-00441-CR
MICHAEL MASSENGALE, JUSTICE

Court of Appeals of Texas, Ninth District

City of Willis v. Garcia, 09-16-00164-CV (TexApp Dist 07/06/2017)

Appellant the City of Willis enacted a red-light camera system to ticket drivers, as allowed under Tex. Transp. Code Ch. 707. Luis Garcia and several other motorists contested the system and sought refunds of fines they paid "under duress," claiming Chapter 707 is unconstitutional as a violation of their right against self-incrimination, their right to confront witnesses, and other reasons. Alternatively, the motorists claimed city officials failed to conduct a traffic engineering study as required under the ordinance. Appellant argued the trial court did not have jurisdiction because the motorists failed to exhaust administrative remedies provided in Chapter 707 and in the city ordinance, but the trial court denied the jurisdictional plea and an interlocutory appeal followed. The court found that when a statute provides for administrative remedies, as Chapter 707 does, plaintiffs must exhaust those remedies even when claiming the underlying law is unconstitutional or otherwise illegal, under Edwards v. City of Tomball (343 S.W.3d 213). The court also found city officials were protected by sovereign immunity, because a waiver for constitutional questions applies only when a plaintiff seeks equitable relief, whereas here plaintiffs sought a refund of fees paid. The court declined to reach the question of whether a study appellant conducted conformed with Chapter 707's traffic-study requirement. The court found that even if it hadn't, the failure would not trigger an ultra vires exception to the exhaustion requirement, because the plaintiffs could at most complain only that the officials failed to "fully comply" with the statute. The court reversed the trial court's judgment and rendered judgment granting appellant's plea to the jurisdiction. City of Willis v. Garcia, Beaumont Court of Appeals, Case No. 09-16-00164-CV, 7/6/17.

09-16-00164-CV
LEANNE JOHNSON, JUSTICE

United States Court of Appeals, Fifth Circuit

Brooks v. Ormsby, 17-50080 (5th Cir. 07/20/2017)

Brooks, a non-lawyer proceeding pro se, filed a False Claims Act suit against the defendants in his capacity of relator for the United States. The United States declined to intervene as a "party," leaving it as "a real party in interest." The district court ordered Brooks, a federal prisoner, to obtain representation by a duly licensed and qualified attorney, explaining that, even though Brooks could represent himself pro se, he could not do so for the benefit of the United States. When Brooks failed to obtain counsel, the district court dismissed the suit. The court affirmed. In an issue of first impression, the court held that, regardless of the right of Brooks to represent himself pro se, he was not representing himself when he brought an action solely as relator for another non-intervening party, including the United States, and therefore could not do so pro se. United States ex rel Brooks v. Ormsby, Fifth Circuit, No. 17-50080, 7/20/17.

17-50080
WIENER, CIRCUIT JUDGE

Court of Appeals of Texas, Eighth District

Gamero v. State of Texas, 08-15-00280-CR (TexApp Dist 07/19/2017)

Appellant Brian Anthony Gamero clipped another car while driving, sending the second car into the path of a pickup truck and killing the second car's driver. A blood draw at a hospital showed appellant was under the influence of alcohol and various drugs. Later, at a police impound lot, police ran a drug-sniffing dog past appellant's car, and the dog alerted officers to the presence of drugs. Police found cocaine in the car. The state charged appellant with five crimes, and a jury convicted him of intoxication manslaughter, intoxication assault, and possession of cocaine, with a combined sentence of 40 years. During trial appellant moved to suppress evidence from the traffic stop, and also objected to the state entering photos of the victim into evidence, but the court allowed the evidence both times. During the sentencing phase, appellant objected to testimony from a police officer about a previous arrest for driving while intoxicated and cocaine possession, and again, the court allowed the testimony. On appeal, he challenged the admission of evidence from the traffic stop, the photo of the victim, and the police officer's testimony. On the issue of the traffic stop, appellant argued police did not have the exigent circumstances exception to the warrant requirement once his car was in the impound lot. The court found that the alert by the dog – the use of which does not in and of itself require a warrant or warrant exception – provided probable cause for police to search his car without a warrant. On the issue of the photographs, appellant argued they were entered to inflame the jury and their prejudicial effect outweighed their probative value. The court found that the state had the burden to prove that the victim died by accident or mistake, and photos of her injuries helped the jury determine whether the death was accidental, rather than suicidal or homicidal. The court distinguished a case appellant relied on, Erazo v. State (144 S.W.3d 487), because there the excluded photos were of the victim's unborn child rather than the victim herself. On his last issue, appellant argued the officer lacked probable cause for the traffic stop that led to the previous arrest. The court found that the officer's testimony that appellant's car had a crack taillight established probable cause, and noted that appellant did not deny being involved in the previous incident. The court affirmed the trial court's judgment. Brian Anthony Gamero v. The State of Texas, El Paso Court of Appeals, Case No. 08-15-00280-CR, 7/19/17.

08-15-00280-CR
GINA M. PALAFOX, JUSTICE

United States Court of Appeals, Fifth Circuit

USA v. Rico, 16-10235 (5th Cir. 07/20/2017)

Rico pleaded guilty to conspiracy to possess with intent to distribute a controlled substance. His presentence investigation report applied a two-level adjustment because the offense involved a firearm; a two-level adjustment because the methamphetamine that Rico distributed had been imported; and a two-level adjustment on the basis that Rico maintained a premises for the purpose of distributing a controlled substance. The PSR included a three-level reduction for acceptance of responsibility. At sentencing, the district court denied the reduction for acceptance of responsibility, but otherwise adopted the PSR. Rico appealed, challenging two of the enhancements and the denial of a reduction for acceptance of responsibility. The court affirmed. It first held that Rico could not challenge whether the methamphetamine was from Mexico, as required for one of the two-level enhancements, because he waived his objection to this finding in the district court. With respect to Rico's argument that the information in the PSR was insufficiently reliable to support the maintaining-a-premises finding, the court held that the information was sufficiently reliable because it was provided by Rico's brother and confirmed with an agent on the case. Finally, the court held that, because the district court made it clear that the sentence would be the same regardless of whether it applied an acceptance of responsibility reduction, any error was harmless. United States v. Rico, Fifth Circuit, No. 16-10235, 7/20/17.

16-10235
HAYNES, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

Cowin v. Countrywide, 15-20600 (5th Cir. 07/18/2017)

Countrywide and Bank of America sued Cowin for his involvement in a scheme that deprived the banks of excess foreclosure sale proceeds. Cowin filed for Chapter 11 bankruptcy protection. In response, the banks brought adversary proceedings, seeking a finding of nondischargeability. The bankruptcy court concluded that Cowin was liable for the aggregate amount of the excess proceeds, and that his debts arising from the state-law violations were nondischargeable. Cowin appealed. He admitted that he participated in a conspiracy to divert proceeds from the plaintiffs, was liable for state-law violations due to his participation in the conspiracy, and that the conduct and intent of the conspiracy meet the federal common law standard for either the "larceny" or "willful or malicious injury" exception. Cowin argued, however, that the bankruptcy court erred in imputing to him the actions and intent of his co-conspirators in determining nondischargeability. The court affirmed. It concluded that the bankruptcy court made findings about Cowin's personal conduct and intent sufficient to satisfy the requirements of §§523(a)(4) and 523(a)(6). Additionally, the court held, the intent and actions of Cowin's co-conspirators was sufficient to support nondischargeability under §523(a)(4). Cowin v. Countrywide Home Loans, Fifth Circuit, No. 15-20600, 7/18/17

15-20600
STEPHEN A. HIGGINSON, CIRCUIT JUDGE

Court of Appeals of Texas, Fourteenth

In the Matter of I.F.M., 14-15-00781-CV (TexApp Dist 07/18/2017)

The state charged IFM, a 15-year old minor, with theft of property from a department store. A jury returned a verdict of "true." The trial court then conducted a disposition hearing and entered an order of disposition for six months' probation and conditions of probation. The court affirmed. It first held that the evidence, including the testimony of the store's loss-prevention officer, videotape evidence and the testimony of IFM's co-conspirator, was legally sufficient to prove IFM committed the offense of theft of property. It held that IFM was not entitled to a defensive instruction on mistake-in-fact because she did not request it or object to the absence of such an instruction at trial. In the Matter of I.F.M., Court of Appeals, No. 14-15-00781-CV, 7/18/17.

14-15-00781-CV
JOHN DONOVAN, JUSTICE

Court of Appeals of Texas, Fourteenth

Morris v. Duetsche Bank, 14-16-00354-CV (TexApp Dist 07/18/2017)

This case involved a home-equity loan encumbering the appellants' homestead with a lien created by a constitutionally noncompliant deed of trust. When the appellants defaulted on the loan, appellee, the lender, sold their home at a non-judicial foreclosure sale and evicted the appellants. The appellants appealed the trial court's summary judgment dismissing their claims against appellee, arguing that the Supreme Court of Texas's recent decision in Wood v. HSBC Bank USA, N.A., 505 S.W.3d 542 (Tex. 2016) compelled a reversal. The Supreme Court determined that constitutionally noncompliant home-equity liens remained invalid until cured and thus not subject to any statute of limitations. In five issues on appeal, the court reversed in part finding the trial court erred in granting summary judgment as the lien remained invalid and not subject to the statute of limitations in accordance with the Wood decision. Further, the trial court erred in granting summary judgment on appellants' wrongful foreclosure claim on the grounds that appellee violated the Texas Constitution as a lien remained invalid until cured under Wood. Moreover, the court reversed summary judgment as to trespass given appellees did not hold proper title and were not in a position to evict appellants. In sum, the court reversed those rulings where summary judgment was premised on the statute of limitations given no such limitations existed when an invalid lien remained uncured. Morris v. Deutsche Bank National Trust Co. Houston 14th Court of Appeals, Case No.: 14-16-00354-CV, 07/18/2017.

14-16-00354-CV
KEN WISE, JUSTICE

Court of Appeals of Texas, Fourteenth

Kuentz v. Cole Systems, 14-15-01031-CV (TexApp Dist 07/20/2017)

Three months after being rehired by a car dealership, a salesman shot and killed his sales manager at work. The appellants, the manager's family, sued the salesman, several dealership-related entities, and the appellee, an employment screening company that performed a pre-employment background check on the salesman. On appeal of the trial court's grant of summary judgment, appellants contended that appellee had a duty to exercise reasonable care in performing its background screening and to disclose what it actually knew about the salesman to the dealership. Appellants also argued that they presented legally sufficient evidence that appellee breached its duties and that its negligence proximately caused decedent's death. The court affirmed holding Texas law generally imposed no duty to take action to prevent harm to others absent certain special relationships or circumstances. Torrington Co. v. Stutzman, 46 S.W.3d 829, 837 (Tex. 2000) Here, the court found appellee was not required to perform background checks beyond that which was expressly agreed to; as appellee performed the services to which it was contracted, it owed no additional duty to provide wide-ranging investigatory services. Further, the record stated that appellee reported to the dealership correctly that the shooter had no criminal convictions; the dealership did not request any additional research. After appellee properly reported its contractual background information, it was the dealership who ultimately determined whether to hire the shooter based on such information. Accordingly, appellee did not owe or breach a duty and summary judgment was properly reached. Kuentz v. Cole Systems Groups, Inc., Houston 14th Court of Appeals, Case No.: 14-15-01031-CV, 07/20/2017.

14-15-01031-CV
KEN WISE, JUSTICE

Court of Appeals of Texas, First District

Duke v. American Western, 01-16-00723-CV (TexApp Dist 07/20/2017)

Appellants Kathryn and Jeff Duke hired American Western Steel to build a house for them. The house was never completed, and appellants sued American Western along with its president and a subcontractor. They filed several claims, including one under the Constructive Trust Funds Act that applied only to American Western and its president. The trial court granted partial summary judgment for the defendants on the CTFA claim and severed it into a separate case. Appellants then sought appeal on the summary judgment ruling, arguing that severing it created a final order. The court, citing Lehmann v. Har-Con Corp., (39 S.W.3d 191), found that an order is not final "unless it actually disposes of every pending claim and party or unless it clearly and unequivocally states that it finally disposes of all claims and all parties." The court found that severance does not make a judgment final, and that the words "final order" in the CTFA judgment were not sufficient to evidence an intent to dispose of all claims against all parties. The court found that because other claims remained against American Western, its president, and the subcontractor, it did not have jurisdiction to hear the appeal, and it dismissed the appeal. Duke v. American Western Steel, Houston 1st Court of Appeals, Case No. 01-16-00723-CV, 7/20/17.

01-16-00723-CV
HARVEY BROWN, JUSTICE

United States Court of Appeals, Fifth Circuit

USA v. All Funds on Deposit at Sun, 16-41164 (5th Cir. 07/19/2017)

In July 2014, Silva was indicted by a federal grand jury and charged with money laundering conspiracy, aiding and abetting bank fraud, aiding and abetting mail fraud, and wire fraud, in connection with his tenure as mayor of Matamoros, Tamaulipas, Mexico. In November 2014, the government filed a verified complaint for civil forfeiture in rem, seeking the forfeiture of all funds in Silva's Bermuda bank account, because the account was allegedly tied to Silva's misappropriated campaign contributions and kickbacks from municipal contracts. The government then filed an amended complaint in which the government alleged that Silva violated four provisions of the Tamaulipas Penal Code; moved for a finding of fugitive disentitlement; and moved for entry of default judgment of forfeiture as to all funds in the Bermuda account. The court granted the government's motion and Silva appealed. He argued that he had presented documents to the district court that expressly and unambiguously exonerated him of the charged conduct, so that the district court abused its discretion by choosing to apply disentitlement. The court disagreed. It held that the district court did not err in its interpretation of the documents, because they did not expressly and unambiguously provide a basis for concluding that the charges had been presented to and resolved by any official act of government in Mexico. United States v. All Funds on Deposit at Sun Secured Advantage, Account Number *3748, Fifth Circuit, No. 16-41164, 7/19/17.

16-41164
E. GRADY JOLLY, CIRCUIT JUDGE

Court of Appeals of Texas, Fourteenth

Guerrero v. State of Texas, 14-16-00353-CR (TexApp Dist 07/20/2017)

Police responded to a shooting at appellant Jose Guadelupe Guerrero's home in 2010. They found him pacing in his girlfriend's bedroom, with the girlfriend, Martha Escamilla, dead in a pool of blood. Paramedics and the first officer on the scene, M. Peters, claimed to have found a gun at the foot of the bed, and Peters secured the gun for "officer safety." Although appellant told police Escamilla shot herself, he was indicted and tried in 2016. During trial, the state produced 21 complaints against Peters from 2015 to 2016. Appellant moved for a continuance to investigate the complaints, but the court denied the motion and Peters did not testify. Also during trial, when the state showed a video of appellant's statement to police, two of Escamilla's adult children shook their heads and made facial expressions. The trial court instructed the jury to disregard their behavior, and denied appellant's motion for a mistrial. The court convicted appellant of murder and sentenced him to 99 years, and an appeal followed on two issues. In the first, appellant argued the court erred by denying his motion for a continuance. The court rejected this issue, finding appellant did not show prejudice beyond mere speculation nor "explain any specific benefit to him that would have resulted from a delay of the proceedings." In the second issue, appellant challenged the trial court's denial of a mistrial, arguing the jury instruction could not cure the prejudicial effect of the family's behavior. The court found the behavior was "less severe" than that in cases where courts held a jury instruction cured the prejudicial effect. The court noted the family did not engage in "verbal outbursts or extreme physical conduct." The court overruled both issues and affirmed the trial court's judgment. Jose Guadelupe Guerrero v. The State of Texas, Houston 14th Court of Appeals, Case No. 14-16-00353-CR, 7/20/17.

14-16-00353-CR
MARC W. BROWN, JUSTICE

United States Court of Appeals, Fifth Circuit

USA v. Jimenez-Elvirez, 16-40560 (5th Cir. 07/10/2017)

A jury convicted Jimenez-Elvirez of conspiracy and aiding and abetting in the transport of undocumented aliens within the United States. Jimenez-Elvirez challenged the sufficiency of the evidence and asserted several challenges to his sentence. The court affirmed. It held that the evidence, although circumstantial, was sufficient to support a finding beyond a reasonable doubt that a conspiracy existed, that Jimenez-Elvirez knew of the conspiracy, and that he voluntarily participated in it. The court held that evidence about Jimenez-Elvirez's prior conviction for a similar crime was admissible under Rule 404(b) to prove motive, intent, absence of mistake, or lack of accident. The court held that the district court erred in enhancing Jimenez-Elvirez's sentence based upon the fact he had pled guilty to another crime, because Jimenez-Elvirez had not been sentenced for that other crime (and could have still withdrawn his guilty plea). It concluded, however, that it was not going to reverse and remand based upon this sentencing error because Jimenez-Elvirez failed to show "a miscarriage of justice." Finally, the court rejected Jimenez-Elvirez's argument that the prosecutor improperly bolstered the testimony of a key government witness during his closing argument. United States v. Jimenez-Elvirez, Fifth Circuit, No. 16-40560, 7/10/17

16-40560
JAMES E. GRAVES, JR., CIRCUIT JUDGES

Court of Appeals of Texas, Thirteenth

State of Texas v. Martinez, 13-15-00592-CR (TexApp Dist 07/13/2017)

Juan Martinez Jr. was indicted for intoxication manslaughter. After he was involved in a car crash, he was taken to the hospital and staff drew his blood for medical purposes. He told staff not to test his blood and left the hospital, but police who arrived later instructed staff to preserve it. Police later sent the sample to the Department of Public Safety for testing under a grand jury subpoena, but the trial court ruled the test results inadmissible, finding that the test was an unlawful warrantless search. The state appealed. The court found that the cases the state relied on involved medical records and were not controlling. The court also found that under the plurality opinion in State v. Comeaux (818 S.W.2d 46), a person maintains an expectation of privacy in a blood sample given for medical purposes. The court found that the subsequent acquisition and testing of the sample constituted a search under the Fourth Amendment, placing a burden on the state to establish an exception to the warrant requirement. The court also found that the state did not attempt to do so, at trial or on appeal. The court thus held that the warrantless blood test violated the Fourth Amendment and affirmed the trial court's decision. State of Texas v. Juan Martinez Jr., Corpus Christi-Edinburg Court of Appeals, Case No. 13-15-00592-CR, 7/13/17.

13-15-00592-CR
LETICIA HINOJOSA, JUSTICE

United States Court of Appeals, Fourth Circuit

Cameron v. State of Texas, 04-12-00294-CR (4th COA. 07/12/2017)

Appellant was convicted of the murder for hire of her child's father and sentenced to seventy years in prison. On appeal, appellant raised several issues, including that she was deprive of her sixth amendment constitutional right to a public trial during voir dire. In its opinion on rehearing, the Court of Criminal Appeals held that appellant bore an initial burden of proof on appeal to show that the courtroom was "in fact closed" to the public before an appellate court may consider whether the closure was justified under the sequential two-step test under Lilly v. State, 365 S.W.3d 321, 331 (Tex Crim. App. 2012). The state did not challenge the fact that the public was cleared from the courtroom prior to the venire panel's entry and seating. Further, the trial court's own fact findings and statements on the record showed the public did not re-enter the courtroom to observe voir dire or were permitted inside the courtroom during that time. However, the trial court cited the large venire panel, the lack of space for spectators to sit inside the courtroom, jury-contamination issues due to the emotionally charged trial, and courtroom security concerns as reasons to maintain closure. The court therefore reversed finding the judge's own statements on the record indicating a lack of accommodations undermine its findings of fact that the courtroom was not "closed." Further, the trial court did not fulfill its duty to consider all reasonable alternatives and to provide reasonable accommodation to the public before closing the courtroom. Because the error was structural, the trial court's judgment was reversed and the cause remanded for a new trial. Vanessa Cameron v. The State of Texas, San Antonio Court of Appeals, Case No.: 04-12-00294-CR, 07/12/2017

04-12-00294-CR
REBECA C. MARTINEZ, JUSTICE

Court of Appeals of Texas, Twelfth

International v. Lufkin, 12-15-00223-CV (TexApp Dist 07/12/2017)

Manufacturer Lufkin Industries purchased the Express Solution, a software package for business operations, from appellant IBM. However, several tests of the software failed, pushing back the implementation for months and costing Lufkin millions of dollars in extensions that it agreed to based on IBM's assurances that it could fix the problems. The eventual go-live release also failed, costing Lufkin another $7.5 million to third-party consultants to fix the software, hurting Lufkin's stock price, and causing Lufkin to conduct transactions manually for months. Lufkin sued for fraudulent inducement of a contract, fraud, and breach of contract. The jury found Lufkin suffered $10 million in damages for the difference between the value of its software and the amount the company paid for it; $11 million in costs paid to third parties; and an alternate award of $6 million on the fraud claim. The court awarded $21 million plus interest, and an appeal followed on several grounds. The court rejected appellant's issue that evidence did not support a claim of fraudulent inducement. The court found the lead engineer responsible for implementing the software, in an email to his team early in the process, conceded that Express Solution was woefully insufficient for a company of Lufkin's size. The court also found Lufkin relied on appellant's material representations that it could quickly implement the software. The court also rejected appellant's argument that Lufkin waived liability by agreeing to the string of contracts extending implementation, finding that Lufkin did not do so with "full knowledge" that the software could not be fixed as quickly or cheaply as appellant represented. The court sustained appellant's issue that Lufkin could not recover for both fraudulent inducement and fraud, because the complaints were based on the same underlying facts. However, it also found the court properly awarded only the higher $10 million damage amount, rather than adding the alternate $6 million award. The court furthermore found that the award for costs paid to third parties should have been limited to the $7.5 million Lufkin paid after the go-live date, rather than the total amount of $11 million that it paid to third parties. The court suggested a remittitur for the difference; reversed the $6 million alternate award and rendered take-nothing judgment on that award; and affirmed the trial court's judgment in all other respects. International Business Machines v. Lufkin, Tyler Court of Appeals, Case No. 12-15-00223-CV, 7/12/17.

12-15-00223-CV
JAMES T. WORTHEN, CHIEF JUSTICE

United States Court of Appeals, Fifth Circuit

Quinn v. Guerrero, 16-41344 (5th Cir. 07/10/2017)

The defendants entered Quinn's house after midnight to execute a search warrant. Quinn alleged that he heard the commotion and that, because the officers did not identify themselves as law enforcement, he retrieved a licensed handgun from his nightstand. One of the officers saw the weapon and fired, striking Quinn in the right hand. Quinn sued the officers and city in state court. The state court ordered Quinn to clarify if he was asserting any federal claims. Quinn then filed an amended complaint in which he included a §1983 claim. The defendants removed the case to federal court, the federal court denied Quinn's motion to remand, and, instead, granted the defendants' motion to dismiss. The court affirmed. It first held that the district court did not err in denying Quinn's motion to remand because the defendants removed the case within 30 days from the date Quinn asserted the §1983 claim. The court next held that the state-law claims against the officers were properly dismissed (as barred by the Texas Tort Claims Act) and the federal-law claims were correctly dismissed as time-barred. The court held that the district court also correctly dismissed the state-law claims against the city (because the Texas Tort Claims Act does not apply to claims of intentional conduct) and correctly dismissed the federal-law claims against the city (because Quinn did not identify an official policy or widespread custom that caused a violation of his constitutional rights). Quinn v. Guerrero, Fifth Circuit, No. 16-41344, 7/10/17.

16-41344
LESLIE H. SOUTHWICK, CIRCUIT JUDGES

United States Court of Appeals, Fifth Circuit

Plummer v. University of Houston, 15-20350 (5th Cir. 06/26/2017)

In November 2011, a university student (McConnell) had sex with a female student in his dorm room. Plummer (who was then McConnell's girlfriend and is now his wife) found McConnell and the naked female student in the dorm room. She took videos and a photo of the female student and posted then to various social media websites. The university charged McConnell with sexual assault and Plummer with recording sexual activity of another. After two evidentiary hearings, the university found against both students. When the university vice president denied their appeals, they were expelled. They sued, alleging that the process was constitutionally deficient. The district court found in favor of the defendants. The court affirmed. It held that, because the plaintiffs received "multiple, meaningful opportunities to challenge the University's allegations, evidence, and findings," they did not satisfy their burden of showing that the process surrounding their cases was constitutionally defective. Although the plaintiffs argued they were denied an opportunity to confront the female student, the court held that this fact was irrelevant because the university's case did not depend upon the student (who did not have any recollection of the encounter), but instead relied upon Plummer's photo and videos. The court also rejected the plaintiffs' argument that they were not provided sufficient advance warning of evidence and witnesses, holding that they did not show how this made any difference in the outcome. Plummer v. Univ. of Houston, Fifth Circuit, No. 15-20350, 6/26/17

15-20350
STEPHEN A. HIGGINSON, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

Panetti v. Davis, 14-70037 (5th Cir. 07/11/2017)

Panetti's counsel learned, from reading a newspaper article, that Texas had scheduled Panetti's execution, to occur in approximately five weeks. He immediately filed an emergency motion for a hearing, for permission to retain counsel and for authority to retain experts, because of serious doubts over Panetti's mental competency. The state trial court refused to stay the execution to allow retention of counsel and experts. It proposed Panetti's counsel file a "skeletal" competency petition, which he did, and then denied that petition. A divided state court of appeals affirmed. After the federal district court denied Panetti's habeas motion, the court stayed the execution for briefing and argument. It held that Panetti was denied due process and reversed the district court's decision. The court held that Panetti was entitled to counsel, experts, and investigative resources in order to pursue his non-frivolous claim that was not competent to be executed. It held that the scheduling and lack of notice of Panetti's execution did not afford his counsel sufficient time to prepare for the competency hearing. It remanded the case to the district court with instructions to appoint counsel, authorize funds for investigative and expert assistance, and determine if Panetti was competent to be executed. Panetti v. Davis, Fifth Circuit, No. 14-70037, 7/11/17

14-70037
PATRICK E. HIGGINBOTHAM, CIRCUIT JUDGES

Court of Appeals of Texas, Fourteenth

In the Interest of J.R.P., 14-15-00912-CV (TexApp Dist 07/11/2017)

Mother and father had joint conservatorship of their son, J.R.P, with mother holding the exclusive right to determine his primary residence. Father petitioned to modify conservatorship based on mother's drug use, as evidenced by witnesses and a failed drug test. The court modified the conservatorship order, giving father the right to determine J.R.P.'s primary residence. Mother appealed on several grounds. In one issue, she argued that there was no change in circumstances since the initial order. The court found that since the first order, mother failed a drug test, admitted to using drugs, refused to take part in state services, and displayed erratic behavior. The court rejected mother's argument that she had a drug habit before the initial order, such that her drug use afterwards was not a change in behavior. The court found father's testimony that mother had passed a drug test before the order and that he believed she had stopped using drugs was sufficient to show a material and substantial change. The court also overruled two issues challenging the sufficiency of father's affidavits. The court found the trial court did not err by declining to dismiss the case when it found his initial affidavit insufficient, as the statute (Tex. Fam. Code 156.102) does not require dismissal. The court found the second affidavit was sufficient to warrant a hearing on changed circumstances because mother's drug test results were attached. The court overruled a challenge to father's testimony because the court had sufficient other evidence, including testimony from a state caseworker, to make its decision. Lastly, the court overruled a challenge to the trial court refusing to allow cross-examination of father because it was not properly preserved for review. The court affirmed the trial court's judgment. In the Interest of J.R.P., Houston 14th Court of Appeals, Case No. 14-15-00912-CV, 7/11/17.

14-15-00912-CV
JOHN DONOVAN, JUSTICE

United States Court of Appeals, Fifth Circuit

USA v. Silva, 16-40167 (5th Cir. 06/14/2017)

Law enforcement officials executed an arrest warrant on Silva for violation of his parole. After Silva was detained outside his trailer, two officers conducted a protective sweep of the trailer to check for individuals inside. They did not have a search warrant. During the sweep, one of the officers opened a compartment under a mattress and discovered a shotgun, ammunition, and body armor. Silva, a felon with an extensive criminal history, was charged with one count of being a felon in possession of a firearm and ammunition. After entering into a plea agreement, he appealed, arguing the district court erred by not granting his motion suppress the search. Silva contended that the protective sweep was not justified or permissible because there were no exigent circumstances. The court disagreed. It held that, given the officers' concern that someone might have been inside the trailer with a weapon, the district court did not clearly err in concluding that the officers were reasonably concerned about their safety. The court further held that, given the agent's unrefuted testimony that he believed that a person could have been hiding in the wooden compartment under the mattress, the search of the trailer, including the wooden box under the mattress, did not exceed the scope of a lawful protective sweep. Finally, the court held, because Silva's motion to suppress was based upon a false assertion (that the compartment under his mattress was locked), the district court did not err in refusing to reduce Silva's sentence for acceptance of responsibility. United States v. Silva, Fifth Circuit, No. 16-40167, 6/14/17

16-40167

United States Court of Appeals, Fifth Circuit

BancPass v. Highway, 16-51073 (5th Cir. 07/13/2017)

BancPass and Highway Toll Administration ("HTA") are competitors. HTA sent letters to Texas administrators, Google and Apple, challenging BancPass's business model and claiming, in the letters to Google and Apple, that BancPass allowed users to engage in unlawful activities. BancPass sued HTA for defamation. HTA argued that the letters were protected by the judicial proceedings privilege because they were made in contemplation of potential litigation. After the district court denied HTA's motion, HTA filed an interlocutory appeal. The court agreed that Texas' judicial proceedings privilege provides a complete immunity from suit, and is therefore immediately appealable. The court held that a district court is permitted to maintain jurisdiction over an interlocutory appeal of an immunity denial after certifying that the appeal is frivolous or dilatory, but that, because the district court here did not make any such finding, it did not retain jurisdiction during the pendency of the appeal. Turning to the merits, the court held that the district court correctly denied HTA's judicial privilege defense. Although Texas decisions had extended the privilege to statements made in contemplation of litigation, the privilege still had limits, and the communications here were not sufficiently connected to the subsequent litigation to fall within the scope of the privilege. BancPass, Inc. v. Highway Toll Administration, LLC, Fifth Circuit, No. 16-51073, 7/13/17

16-51073
STEPHEN A. HIGGINSON, CIRCUIT JUDGE

Court of Appeals of Texas, Fourteenth

Kehoe v. Pollack, 14-16-00421-CV (TexApp Dist 07/11/2017)

Medical doctor Jo M. Pollack invested in the Grist Mill Trust Welfare Benefit Plan through a "professional association" that consisted of herself. Pollack believed she was investing in a retirement account with proceeds she could access, but later learned the trust invested in a life insurance policy with proceeds payable to Pollack as a "covered employee" only upon her death. Pollack sued Penn Mutual, the life insurance company, for the proceeds of the policy, and the Grist Mill Trustee – later succeeded by appellant Kathy Kehoe – filed an interpleader. The trial court dismissed claims against Penn Mutual after the company surrendered the proceeds to the court. The court then denied appellant's motion to compel arbitration and granted summary judgment for Pollack on a motion to declare she was the rightful owner, and an appeal followed. The court found that appellant was attempting to compel arbitration with Penn Mutual and Pollack, in her individual capacity, based on an arbitration clause that Penn Mutual did not sign and that Pollack signed in her capacity as head of the professional association. The court held the clause did not bind either party, and overruled appellant's issue. However, the court found the summary judgment evidence did not conclusively show that Pollack owned the disputed funds. Instead, the evidence showed the unambiguous contract provided Grist Mill was the owner, and that Pollack was presumed to have read and understood the contract despite her claims she was fraudulently induced into signing. The evidence also showed that Grist Mill, not Pollack, was the owner and beneficiary of the policy, with claims paid to Pollack as a "covered employee." Thus, the court held the trial court erred by granting summary judgment. The court reversed the summary judgment ruling and remanded for further proceedings. Kehoe v. Pollack, Houston 14th Court of Appeals, Case No. 14-16-00421-CV, 7/11/17.

14-16-00421-CV
KEM THOMPSON FROST,CHIEF JUSTICE

United States Court of Appeals, Fifth Circuit

Total Gas v. Federal Energy, 16-20642 (5th Cir. 07/10/2017)

FERC initiated a formal investigation into TGPNA and two of its trading managers ("Total"), based on a tip it received from a former TGPNA employee alleging that the company had been manipulating prices in the natural gas markets. After more than three years of investigation, FERC's enforcement office advised Total that it was going to recommend that FERC initiate enforcement proceedings for violations of the Natural Gas Act and assess corresponding civil penalties. When FERC initiated the proceeding, Total filed a declaratory judgment action, alleging that FERC lacked the authority to adjudicate violations of the NGA and assess corresponding civil penalties through in-house administrative proceedings, because the NGA vested such authority exclusively in federal district courts. The district court granted FERC's motion to dismiss. The court affirmed. It held that the challenge to FERC's jurisdiction was not ripe because the FERC action remained pending, the agency had not reached any conclusion about whether the NGA had been violated, and the agency had not imposed any fine. The court held that, if FERC found a violation and imposed a fine, Total could then challenge those decisions in federal district court. Total Gas & Power North America v. Federal Energy Regulation Commission, 5th Circuit, No. 16-20642, 7/10/17

16-20642
KING, CIRCUIT JUDGES

Court of Appeals of Texas, Fourteenth

Berkel v. Lee, 14-15-00787-CV (TexApp Dist 07/13/2017)

Appellee, a general contractor's superintendent, sued appellant on claims of negligence, gross negligence, and intentional injury for injuries which occurred on a commercial construction site. A jury made findings in favor of appellee and the trial rendered judgment based on the jury's award. The central issue on appeal was whether the Texas Workers' Compensation Act precluded appellee's recovery of common law damages. The court concluded it did and reversed the judgment. The court noted the undisputed evidence showed the general contract was appellee's actual employer and agreed to provide workers' compensation insurance to all of its subcontractors and their employees through a contractor-controlled insurance program. Appellant enrolled in the program therefore qualifying it as a statutory employer with appellee its statutory co-employee. As a co-employee, appellant was entitled to rely on the Act's exclusive-remedy provision, meaning the trial court erred by rendering judgment against appellant on the findings that appellant was negligent and grossly negligent. Further, the court found that the evidence was legally insufficient for a factfinder to reasonably determine that conduct was substantially certain to bring about harm thereby negating intentional infliction of injury. Because the Act's exclusive-remedy provision barred appellee's negligence claims, and because the evidence was legally insufficient to support his claim of intentional injury, there was no basis upon which the judgment against appellant could be affirmed. Berkel & Co. Contractors, Inc. v. Lee, Houston 14th Court of Appeals, Case No.: 14-15-00787-CV, 07/13/2017

14-15-00787-CV
TRACY CHRISTOPHER, JUSTICE

Court of Appeals of Texas, Third District

Cavin v. Abbott, 03-16-00395-CV (TexApp Dist 07/14/2017)

Appellees, husband and wife, filed suit against wife's parents, appellants, seeking monetary damages and injunctive relief following numerous attempts by appellants to interrupt their union. Appellees asserted theories, among others, of defamation, tortious interference with existing contract, abuse of process, assault, and emotional distress. Appellants timely moved under the Texas Citizens Participation Act (TCPA) to dismiss premised primarily on the contention that their numerous statements about the appellees' mental health or "abuse" met the TCPA's definition of the "exercise of the right of free speech" because they were "communication[s] made in connection with a matter of public concern," namely "health or safety." In response, appellees urged the TCPA had no application to their suit and that their assault claim fell within the Act's express exemption. The district court denied dismissal finding the assault claim was exempt and the motion was frivolous. On appeal the court affirmed the district court's order only with respect to the assault claim finding an express exception for bodily-injury claims prevented the "anti-SLAPP" law from similarly barring an assault claim predicated on an alleged violent attack by the father. However, the court was compelled to conclude that the TCPA's protections extended to – and ultimately required dismissal of all other claims – statements by appellants, claims concerning stalking by private investigators, and alleged theft. The court noted the plain meaning of the statute finds that such statements can be found under the public concern for health and safety to which the Act seeks to protect. Consequently, appellants' actions qualified as the "exercise of the right of free speech" and therefore were required to be dismissed. Cavin v. Abbott, Austin Court of Appeals, Case No.: 03-16-00395-CV, 07/14/2017

03-16-00395-CV
DAVID PURYEAR, JUSTICE

Court of Appeals of Texas, Tenth

Almanza v. State of Texas, 10-16-00224-CR (TexApp Dist 07/12/2017)

Appellant appealed from a conviction for the offense of driving while intoxicated. Tex. Penal Code Ann. §49.04 (West 2011). Appellant complained that her sixth amendment right to a jury trial was violated because one of the jurors was not the actual juror that was summoned and therefore the court lacked jurisdiction over the juror. In this matter, the summoned juror – mother – maintained the same name as the appearing juror – daughter – although with a middle initial. It was when the check for serving on the jury panel was issued which included a middle initial that the daughter contacted the court. The trial court denied appellant's motion for a new trial concluding that daughter was not legally disqualified from serving on the panel pursuant to Tex. Code Crim. Proc. Ann. art 35.16. The court affirmed denial finding that the appearance of a person for jury duty whom submitted themselves to the jurisdiction of the trial court to administer the juror oath and be subject to all the instructions and orders of the trial court during the conduct of the trial did not violate appellant's sixth amendment right to a trial by jury. The court noted such instance was analogous to a witness whom resided outside the subpoena power of a court but still appeared as a witness – such individual submitted themselves to the jurisdiction of the court. Accordingly, the daughter's appearance effectively placed herself within and under the jurisdiction of the trial court and the court affirmed appellant's conviction. Cathy Jo Almanza v. The State of Texas, Waco Court of Appeals, Case No.: 10-16-00224-CR, 07/12/2017

10-16-00224-CR
TOM GRAY, CHIEF JUSTICE

Court of Appeals of Texas, Fourteenth

Texas Black v. Arawak Energy, 14-16-00929-CV (TexApp Dist 07/11/2017)

Arawak, a United Arab Emirates company that performs oil and gas exploration, bought drilling equipment from appellant Texas Black Iron. Arawak prepaid $2.8 million for the equipment, under a contract with a 75 percent buyback clause. Appellant failed to deliver certain equipment worth $1.1 million, and refunded Arawak $400,000. Appellant also declined to refund money for other equipment, telling Arawak it did not have the money due to a downturn in business, according to court testimony. Arawak sued for breach of contract and also sought a temporary injunction preventing appellant from re-selling any of the equipment it had purchased, which Arawak considered to be its own assets. The trial court granted the injunction, and an appeal followed, on grounds that the court abused its discretion by granting the injunction and that the court did not properly set forth its reasons. The court found the injunction was proper. The court found appellant did not contest that Arawak held title to the equipment, and also rejected appellant's argument that monetary damages for breach of contract provided an adequate remedy. The court noted that the fact that Arawak sought money damages as its ultimate remedy does not ensure that damages will be adequate, particularly in light of the fact the appellant was undergoing bankruptcy proceedings. The court also found appellant relied on cases where plaintiffs sought to freeze a defendant's assets that were unrelated to the lawsuit, which a court generally should not allow. The court distinguished this case because the assets Arawak sought to freeze were the subject of the dispute. In a separate issue, appellant argued the trial court did not properly set forth its reasons for granting the injunction under Tex. R. Civ. Pro. 683. The court found "[t]he trial court recited that absent injunctive relief Arawak will be irreparably injured because TBI may alter, destroy, or resell the drilling equipment at issue, which would interfere with Arawak's attempt to mitigate its damages," and that Arawak would be irreparably harmed. The court found this to be a sufficient reason, and found it properly linked the reason to an irreparable injury. The court affirmed the trial court's judgment. Texas Black v. Arawak Energy, Houston 1st Court of Appeals, Case No. 14-16-00929-CV, 7/11/17.

14-16-00929-CV
MARC W. BROWN, JUSTICE

United States Court of Appeals, Fifth Circuit

Welsh v. Fort Bend, 16-20538 (5th Cir. 07/13/2017)

In September 2014, Welsh sued her employer, alleging that it discriminated and retaliated against her on the basis of her gender, national origin and age. In January 2015, the district court dismissed the suit for lack of subject matter jurisdiction. After Welsh filed another administrative charge, she filed another suit against the school district, again alleging discrimination and retaliation. The district court dismissed the second suit on the basis of res judicata. The court reversed. It held that res judicata barred only those claims that were "mature" at the time Welsh filed her first suit. Although the school district argued that Welsh was required to amend her complaint in the first suit, to include the allegations that formed the basis of her second suit, the court rejected this argument. It remanded the case to determine which claims were barred, and which claims remained viable. Welsh v. Fort Bend Indep. School Dist., 5th Circuit, No. 16-20538, 7/13/17

16-20538
HAYNES, CIRCUIT JUDGES

Court of Appeals of Texas, First District

Herrera v. State of Texas, 01-16-00403-CR (TexApp Dist 07/13/2017)

A high school senior known to the court as "Jessica" died in a hotel room on her prom night, which she had attended with appellant Eddie M. Herrera. Appellant told police he and Jessica fell asleep after having consensual sex, and when he woke up Jessica was dead. He told police he lightly choked Jessica with her consent, but the medical examiner found evidence of severe trauma to Jessica's neck. A jury convicted appellant of aggravated assault, raised to a first-degree felony by the aggravating factors of using a deadly weapon (his hands) on a person with whom he had a dating relationship. The jury sentenced appellant to 25 years. On appeal, he argued the evidence was insufficient to support several elements of the crime. In one such element, appellant argued his three-week relationship with Jessica did not meet the definition of "dating relationship." The court found that appellant gave Jessica a ring on prom night, that he did not correct police's characterization of Jessica as his girlfriend, and that in at least one other case involving teenagers, a two-week timeframe qualified as a "dating relationship." The court found these factors could give rise to a dating relationship. Appellant also challenged the mens rea element, arguing his statements to police showed no evidence of an intent to harm Jessica. However, the court found that mens rea is often established by circumstantial evidence, and in this case a jury could infer that appellant was aware of the danger to Jessica because in police interviews he underplayed the amount of force he used. Appellant also argued the evidence was insufficient for the choking element because that element requires the state to show evidence that he restricted Jessica's air flow, whereas the medical examiner testified that Jessica's injuries cut off blood flow to the brain. The court rejected this argument, finding the medical examiner testified the force needed to cause Jessica's injuries was consistent with choking. The court affirmed the trial court's judgment. Eddie M. Herrera v. The State of Texas, Houston 1st Court of Appeals, Case No. 01-16-00403-CR, 7/13/17.

01-16-00403-CR
HARVEY BROWN, JUSTICE

United States Court of Appeals, Fourth Circuit

Five Aces v. River Road, 04-16-00781-CV (4th COA. 07/12/2017)

Appellant applied to renovate and construct a new apartment complex on residential property located within the River Road Historic District on the grounds that the changes made to it had caused it to lose its historic significance. Following approval, appellee sought judicial review asserting that the Board of Adjustment had acted without reference to the guiding rules and principles governing its decision and had incorrectly analyzed and applied the law. Specifically, appellee alleged that the approval improperly permitted partial demolition of a structure that was the principle dwelling without a separate demolition application and approval. The trial court granted appellee's summary judgment and withdrew the certification of the project. On appeal, the court reversed holding the plain statutory language of the applicable Unified Development Code sections, read in context of the statute as a whole, and the summary judgment record showing the substance of the work to be performed and the agency's findings, the approval certificate was properly issued for the project as an "alteration, restoration, or rehabilitation." Further, the court found any new "addition" under §35-610 and §35-611 did not require the need for separate applications for demolition and determination of non-contributing status. Therefore, the court reversed the trial court's summary judgment and rendered judgment instructing the Board of Adjustment to re-issue the Certificate of Appropriateness for the project. Five Aces/SA, Ltd. v. River Road Neighborhood Assoc., San Antonio Court of Appeals, Case No.: 04-16-00781-CV, 07/12/2017

04-16-00781-CV
REBECA C. MARTINEZ, JUSTICE

Court of Appeals of Texas, Fourteenth

McNeel v. Citation Oil, 14-16-00180-CV (TexApp Dist 07/11/2017)

Citation Oil and Gas Corp. fired appellant Susette McNeel from her job as an accountant after seven years. Citation's stated reason was that appellant ran a side accounting business that she marketed to Citation's competitors. Appellant sued for gender discrimination, age discrimination, and retaliation, the last charge on a theory that her firing was based on her complaints about her supervisor's negative comments toward women. The trial court granted summary judgment for Citation and an appeal followed. On appellant's discrimination claims, the court found that Citation provided a non-discriminatory reason for the termination; namely, appellant's side business violated the employee code of conduct. Furthermore, the court found that under the burden-shifting analysis of McDonnell Douglas Corp. v. Green (411 U.S. 792), appellant failed to show Citation's purported reason was pretext for discrimination. The court noted that appellant acknowledged operating the side business, and that her "subjective interpretation" that the business did not violate the code of conduct did not create a fact issue. On the retaliation claim, the court found appellant failed to show she engaged in activity – such as complaining about discrimination or sexual harassment – protected by the Texas Commission on Human Rights Act. The court found that appellant did not identify a specific incident of discrimination. Furthermore, it found that no reasonable person would construe her complaints about her supervisor yelling at her, slamming his phone, making comments about other female employees' weight, or expressing suicidal thoughts to be sexual harassment. The court affirmed the trial court's judgment. McNeel v. Citation, Houston 14th Court of Appeals, Case No. 14-16-00180-CV, 7/11/17.

14-16-00180-CV
KEVIN JEWELL, JUSTICE

Court of Appeals of Texas, Eighth District

City of El Paso v. Viel, 08-16-00177-CV (TexApp Dist 06/30/2017)

Appellee filed suit following injuries sustained when an overhead rolling service door collapsed on him while he was working for an air cargo business that leased a portion of a cargo warehouse owned by appellant. Appellant moved for, and was denied, dismissal arguing that it engaged in a governmental function in leasing the cargo warehouse and that it retained immunity from suit and liability for all claims filed against it. On appeal, appellant argued, among other things, it was protected by governmental immunity as appellant was engaged in a governmental function, appellee failed to timely comply with the requirements of the Texas Tort Claims Act (TTCA), ad that appellee failed to establish either an actionable premises defect claim or a tangible personal property claim under the TTCA. On appeal, the court reversed in part finding appellant's leasing of the cargo warehouse which pertained to airport operations a governmental function in accordance with Tex. Transp. Code Ann. §22.021(a)(1) and therefore it maintained immunity as to the negligence claims. Further, because appellee failed to plead any affirmative conduct, appellant retained governmental immunity and the trial court erred in denying the plea to the jurisdiction. However, the court affirmed in part holding that the evidence raised a factual issue as to whether appellant had subjective awareness of its fault in contributing to or producing the injury such that it excused appellee from providing formal notice. Moreover, there existed a factual question whether appellant should have known that overhead door could fail. Accordingly, the court affirmed denial of dismissal of the premises defect claim. City of El Paso, Texas v. Viel, El Paso Court of Appeals, Case No.: 08-16-00177-CV, 06/30/2017

08-16-00177-CV
GINA M. PALAFOX, JUSTICE

Court of Appeals of Texas, First District

Wygal v. State of Texas, 01-15-00771-CR (TexApp Dist 07/11/2017)

Houston police officer D. Morse chased a suspect until the suspect entered a yard with three pit bulls. A woman who lived in the adjoining house, appellant Lavoshae Wygal, came outside. Morse testified that he questioned appellant, determined the suspect was driving her car, and then handcuffed her and put her in the back of his squad car for at least and hour and a half. He testified he did this for appellant's safety, because the suspect was still on the loose. Morse testified that during subsequent questioning, appellant falsely told him her name was Shay Marie and gave a false birthdate. Appellant testified that Morse never asked her name or birthdate, and that when another officer who arrived later asked her birthdate, she gave him the correct date. The jury convicted her of failure to identify and imposed a 60-day sentence, and an appeal followed. Appellant argued that the evidence was insufficient to show that she gave a false name or birthdate, or to show that Morse lawfully detained her. Appellant argued that "Shay Marie" is a logical nickname of Lavoshae, and she therefore lacked the intent to deceive required by Tex. Penal Code §38.02. However, the court found that appellant did not make this argument to the jury; rather, she argued that she did not give Morse a name. Thus, the jury could have reasonably determined, based on the evidence before it, that she intentionally gave police a fake name. Similarly, the court found that the jury could resolve conflicting testimony as to whether appellant gave police a false birthdate in favor of the police version of events. On the issue of lawful detainment, the court found police had specific, articulable reason to believe appellant would hinder apprehension of the suspect. The court noted that he ran into her yard despite the presence of three pit bulls and that he was driving her car, allowing the jury to believe police could reasonably conclude the suspect knew appellant. The court found it irrelevant that Morse testified he detained appellant for her safety, rather than for reasonable suspicion of criminal activity, because he also had a legitimate reasonable suspicion available to him. The court affirmed the trial court's judgment. Lavoshae Wygal v. The State of Texas, Houston 1st Court of Appeals, Case No. 01-15-00771, 7/11/17.

01-15-00771-CR
EVELYN V. KEYES, JUSTICE

Court of Appeals of Texas, Twelfth

Healey v. Healey, 2-16-00007-CV (TexApp Dist 07/12/2017)

Retirees Bud and Betty Healey named their son, appellant Pete Healey, as their agent to manage their finances. After allegations of mismanagement, including claims that appellant lived in their home without permission and loaned himself money from their accounts, Bud and Betty named another son and daughter, Mike and Liza, to manage their money and set up a trust for themselves. Betty died and Bud later sued appellant and two other sons. The court awarded Bud damages and an appeal followed on several grounds. The court found that the evidence – including appellant's own testimony – showed that appellant obtained at least $195,000 from his parents while in a fiduciary role and repaid almost none of it despite repeated requests from Bud. The court rejected appellant's argument that collective damages could not be paid to Bud alone because Pete had borrowed the money from Bud and Betty. The court reasoned that Betty had died before trial and that without a will, her estate had passed to Bud. In another issue, appellant challenged the trial court's ruling denying a jury question that the change in agency was obtained through undue influence. Aside from the fact that Bud testified he changed agents because he didn't trust appellant, rather than because of any stories his other children told him, the court found that any error was harmless because the jury denied undue influence in a separate question about the trust. The court also upheld the trial court's rulings against appellant on his consolidated claims against Mike and Liza for defamation and breach of fiduciary duty. The court found the defamation claim was based on statements of uncontroverted fact or non-actionable opinion. It found appellant did not show gross negligence as required for the breach of fiduciary duty claim because it was based on trust disbursements that Mike and Liza spent for their parents' benefit rather than their own. The court affirmed the trial court's judgment. Healey v. Healey, Tyler Court of Appeals, Case No. 12-16-00007-CV, 7/12/17.

12-16-00007-CV
JAMES T. WORTHEN, CHIEF JUSTICE

Supreme Court of Texas

Pagayon v. Exxon Mobil, 15-0642 (TexApp Dist 06/23/2017)

Carlos Cabulong, a cashier at a Houston convenience store owned by Exxon, got into a physical altercation with a coworker (JR). During the altercation, Cabulong also struck JR's father (Alfredo), who died from his injuries. Alfredo's survivors sued Exxon, alleging, among other theories, that it negligently failed to supervise Cabulong so as to prevent the fight from occurring. The jury agreed and apportioned 75% of the liability to Exxon. The court reversed. It held that, in many circumstances, an employer has a duty to control its employees, and is directly liable for failing to do so. The court emphasized, however, that it had never adopted a rule that an employer has a duty to control an employee acting outside the scope of employment. The court held that it did not need to determine the outer contours of such a rule because, whatever the limits, it was clear that the facts here did not support the imposition of a duty upon Exxon. It held that, because an employer in a situation like the one presented in this case owes no duty to supervise its employees, Exxon was entitled to judgment. Pagayon v. Exxon Mobil Corp., Supreme Court, No. 15-0642, 6/23/17

15-0642
NATHAN L. HECHT, CHIEF JUSTICE

Court of Appeals of Texas, Fourteenth

Immobiliere v. Amegy Bank, 14-16-00457-CV (TexApp Dist 06/20/2017)

Appellant Immobiliere Jeuness Establissement, a Lichtenstein company, was a limited partner in a partnership. The partnership obtained two loans from the bank ICNB worth a total of $1.4 million in 2001 and 2002, using land the partnership owned as collateral. The president of the general partner, Radnor Joint Venture used the loan proceeds for another company he owned. The general partner later took out a third loan from a different bank, using some of the proceeds to pay off the first two. Appellant later sued Radnor and its president, both of whom settled in 2009. Appellant then sued ICNB's successor, Amegy, and ICNB's president at the time of the loans, Steven Pritchard, claiming tortious interference based on allegations that they knew the first two loans were used for non-partnership purposes. The trial court dismissed due to a lapsed statute of limitations and on substantive grounds. An appeal followed, challenging the substantive grounds. The court found the chain of causation was too remote to establish that ICNB or Pritchard caused any damages to appellant. "Even assuming the original loans were wrongfully obtained, the liens securing the loans were released with no loss, no actual damages having occurred to the partnerships," the court stated. Furthermore, the court found, any damage to appellant happened when Radnor used partnership assets to obtain the third loan, a transaction in which ICNB and Pritchard had no role. The court rejected ICNB and Pritchard's cross-appeal for expenses, finding they did not properly preserve it for review because they did not obtain a ruling at trial. The court affirmed the trial court's judgment. Immobiliere Jeuness Establissement v. Amegy Bank, Houston 14th Court of Appeals, Case No. 14-16-00457-CV, 6/20/17.

14-16-00457-CV
MARTHA HILL JAMISON, JUSTICE

Court of Appeals of Texas, Fourteenth

Rodriguez v. State of Texas, 14-16-00107-CR (TexApp Dist 06/20/2017)

Appellant was indicted for aggravated robbery; after his testimony, the trial court charged the jury on the lesser-included offense of aggravated assault and on the defense of self-defense, but refused a charge on the defense of necessity. The jury found appellant guilty of aggravated assault and assessed punishment at twenty-five years' confinement. In a single issue, appellant challenged the trial court's refusal of the necessity instruction and arguing such error was harmful. Although the court found that the trial court should have instructed the jury as to the defense of necessity, it affirmed finding appellant was not harmed by the omission. In determining whether the appellant suffered some actual, rather than merely theoretical, harm, the court was to consider: (1) the arguments of counsel, (2) the jury charge as a whole, (3) the entirety of the evidence, and (4) any other relevant factors. The court found that nothing from the arguments of counsel at trial would lead to the conclusion that appellant's defensive theory was built upon the defense of necessity rather than self-defense. Therefore, this factor weighed against a finding of harm. Further, nothing in the record would indicate that the jury, whom rejected appellant's self-defense theory, would than accept his necessity theory. Accordingly, the necessity instruction was pure "belt and suspenders." The instructions and evidence overlapped to such a degree that the court was assured appellant suffered no harm. Accordingly, the court affirmed the trial court's judgment. Johnny Omar Rodriguez v. The State of Texas, Houston 14th Court of Appeals, Case No.: 14-16-00107-CR, 06/20/2017

14-16-00107-CR
KEN WISE, JUSTICE

Court of Appeals of Texas, Sixth Appellate District

Hartwell v. Lone Star, 06-17-00030-CV (TexApp Dist 06/21/2017)

Appellant Wayne Scott Hartwell defaulted on loans from Lone Star. After Loan Star learned that appellant sold cattle used to secure the loan, without delivering the proceeds to Lone Star, the company sued for breach of contract, conversion, and related claims. The trial court granted a temporary injunction preventing the sale of more cattle, and an appeal followed on several grounds. In one issue, appellant argued the evidence was insufficient to sustain a conversion charge. The court found that because the trial court did not state which claims it found had merit, its judgment would be upheld if the evidence could support any of Lone Star's claims. The court also found the evidence supported a breach of contract claim. Lone Star showed at trial that appellant misrepresented his obligations to other lends, had sold 78 head of cattle with sales of 41 more pending and 21 head of cattle unaccounted for, and had not delivered any of the proceeds to Lone Star. Thus, the court found the evidence supported the breach of contract claim, and held the trial court did not err by issuing the injunction. In a separate issue, the court found the injunction preserved the status quo for a trial on the merits. The court overruled appellant's argument that the last "peaceable, non-contested status quo" was that he was allowed to sell the cattle with his loan officer's consent. Appellant showed evidence that his loan officer authorized the sale of cattle to pay other debts via text message; the court found subsequent text messages quickly reversed the authorization after the loan officer ascertained the meaning of appellant's request. The court also overruled several other issues by appellant and affirmed the trial court's judgment. Hartwell v. Lone Star, Texarkana Court of Appeals, Case No. 06-17-00030-CV, 6/21/17.

06-17-00030-CV
RALPH K. BURGESS JUSTICE

United States Court of Appeals, Fourth Circuit

Warden v. State of Texas, 04-16-00099-CR (4th COA. 05/17/2017)

Police questioned appellant Robert Anthony Warden and others after seeing two cars driving through a field, initially away from a house, then turning back toward it. The home-owner, a known drug dealer, invited police to check behind his house, and when police asked for someone to show them around, appellant volunteered. Officers conducted a routine pat-down before allowing appellant in the vehicle. They found something in his pocket, asked him what it was, and appellant took out a syringe and shot the liquid in it out onto the ground. The liquid turned out to be methamphetamine. The jury found appellant guilty of tampering with evidence and sentenced him to 25 years, based on enhancements for previous felonies. An appeal followed, in which appellant argued his initial encounter with police was a detention rather than a consensual encounter and that police did not articulate reasons to detain him as required under the Fourth Amendment. The court found that "by all accounts" the initial encounter was congenial, and that officers did not draw their weapons, issue commands, or object when appellant hopped over a fence to be separated from officers. The court rejected appellants' argument that police were parked in such a way as to block appellant's car and prevent him from leaving. The court found conflicting testimony on that point, and furthermore, the court noted that appellant was not in his car throughout the entire encounter. The court also found that appellant volunteered to get into the police car. The court thus held that the initial encounter was consensual, obviating the need for police to justify a detention. The court affirmed the trial court's judgment. Robert Anthony Warden v. The State of Texas, San Antonio Court of Appeals, Case No. 04-16-00099-CR, 5/17/17.

04-16-00099-CR
PATRICIA O. ALVAREZ, JUSTICE

Supreme Court of Texas

Hersh v. Tatum, 16-0096 (TexApp Dist 06/30/2017)

The Tatum's minor son killed himself. The Tatums believed that brain trauma from an earlier car accident was the catalyst for the suicide and paid for an obituary stating this was the reason for his death. Hersh, an advocate for mental health and suicide prevention, spoke to a columnist from the Dallas Morning News (Paul), about her views on suicide, and especially the stigma associated with suicide. Paul then authored a column about the topic in which he referenced the Tatum's obituary. The Tatums sued Hersh for intentional infliction of emotional distress, alleging that she encouraged Paul's column to focus on their son's death and obituary. Hersh denied this allegation, and separately maintained that, even if she had done so, she was entitled to dismissal under the Texas anti-SLAPP statute because the allege speech was about a matter of public interest and the Tatums could not show that her alleged conduct was extreme and outrageous. The trial court agreed with Hersh and dismissed the suit. The appellate court reversed, reasoning that a party that denies making the challenged statement cannot invoke the Texas anti-SLAPP act. The court reversed and reinstated the trial court's judgment. It held that Tatum's petition, and not Hersh's denials, controlled and that, because the Tatums alleged that Hersh made the challenged speech, that allegation implicated the statute. The court also agreed that Hersh's alleged speech was on a matter of public concern because suicide prevention and awareness relate to health, safety, and community well-being. The court finally held that, because Hersh's alleged conduct was not "extreme and outrageous," she was entitled to dismissal. It remanded the case for the trial court to consider whether Hersh was entitled to an award of attorney's fees under the statute. Hersh v. Tatum, Supreme Court, No. 16-0096, 6/30/17

16-0096
NATHAN L. HECHT, CHIEF JUSTICE

United States Court of Appeals, Fifth Circuit

USA v. Zamora-Salazar, 16-20307 (5th Cir. 06/28/2017)

After being taken into federal custody along with non-party Cruz-Becerra, appellant was charged with conspiring to import methamphetamine and aiding and abetting importation of methamphetamine. Following a jury trial where Cruz-Becerra cooperated with the government, appellant was convicted; the presentence report grouped the importation counts together and assessed a combined total offense level of 42. Included in this calculation was a two-level enhancement for obstruction of justice alleging appellant treated Cruz-Becerra while in the holding cell together. As a result, the district court sentenced appellant to a term of 360 months if imprisonment and five years of supervised release. On appeal, the court affirmed holding sufficient evidence was presented at trial to support appellant's convictions. As respondent correctly indicated, the timing and circumstances of the drug shipments show a "concert of action" supporting the jury's conclusion that appellant knowingly and voluntarily participated in an agreement to import drugs. Further appellant's own admissions after he was apprehended indicated he knowingly and voluntarily chose to participate in a larger scheme involving others for the purpose of importing drugs. Moreover, the district court did not err in accepting respondent's version of the parties' interaction leading to a PSR report with a sentence enhancement. The record evidence reasonably supported the conclusion that appellant made statements in order to threaten or intimate Cruz-Becerra; therefore, the district court did not clearly err in imposing the sentencing enhancement. Accordingly, the court affirmed the convictions and sentence. U.S. v. Santos Alfonso Zamora-Salazar, Fifth Circuit, Case No.: 16-20307, 06/28/2017

16-20307
CARL E. STEWART, CHIEF JUDGE

United States Court of Appeals, Fifth Circuit

Hicks-Fields v. Harris County, 16-20003 (5th Cir. 06/26/2017)

Hicks, a prisoner at the Harris County jail, punched a guard (Pool). Pool responded by punching Hicks in the face. As he fell, Hicks head struck a concrete ledge in his holding cell. Fifteen minutes later, another guard noticed that Hicks was unresponsive. He was transferred to a hospital but ultimately passed away. His heirs sued several defendants under a variety of legal theories. The district court granted summary judgment to Harris County. The court affirmed. It held that the plaintiffs had not met their evidentiary burden of showing the existence of a "persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy," as required to avoid summary judgment. The court also held that the plaintiffs had failed to produce competent summary judgment evidence of Harris County's failure to train regarding responses to assaults by inmates and medical aid following a response incident, as required for their failure-to-train claim to survive summary judgment. Hicks-Fields v. Harris County, Fifth Circuit, No. 16-20003, 6/26/17

16-20003
PATRICK E. HIGGINBOTHAM, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

USA v. Cessa, 16-50328 (5th Cir. 06/09/2017)

Appellant was convicted of participating in a scheme to launder drug proceeds for Los Zetas, a Mexican drug cartel. The district court sentenced appellant to 200 months in prison, followed by three years of supervised release. Additionally, the district court ordered forfeiture of appellant's personal property and a $60 million money judgment. On appeal, appellant raised six issues, including failure to disclose Brady and Giglio material, jury instructions, the prosecutor's closing statement, double jeopardy, prosecutorial misconduct, and forfeiture of property. The court remanded for further findings on the Brady and Giglio claims but otherwise rejected appellant's arguments. Under Brady v. Maryland, a defendant's due process rights were violated when the prosecution suppresses evidence that was exculpatory. 373 U.S. 83, 87 (1963) The principle also applied to evidence that could be used to impeach prosecution witnesses. Giglio v. United States, 405 U.S. 150, 152-154 (1972) The court found the district court gave reasons which denied discovery couched in terms of favorability only. In addition, the timing of the district court's decision – occurring just after testimony of the government's cooperating witness – indicated that the court did not assess materiality. The court found that the evidence was possibly exculpatory, including the use of funds being for "horses" rather than money laundering, and that appellant feared the cartel. Because the district court's analysis ended at the favorability step and declined to address either suppression or materiality, it erred in concluding the evidence was not favorable. Finally, the court determined the district court did not abuse its discretion as it related to appellant's remaining challenges. U.S. v. Francisco Antonio Colorado Cessa, Fifth Circuit, Case No.: 16-50328, 06/09/2017

16-50328
STEPHEN A. HIGGINSON, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

Feld v. Traxxas, 16-40686 (5th Cir. 06/30/2017)

Traxxas is a manufacturer of radio-controlled vehicles. Feld owns and promotes a live monster-truck show. Traxxas agreed to produce and sell certain "Stampede" radio-controlled vehicles branded with Feld's intellectual property, in exchange for paying Feld a royalty. Traxxas also produced and sold other "Stampede" vehicles that it intended to be outside the scope of the licensing agreement. Feld sued Traxxas, claiming that it was due a royalty on all "Stampede" vehicles. The district court held that the licensing agreement was ambiguous and submitted the case to a jury. The jury found for Feld and awarded it royalties based upon all "Stampede" vehicles. The court affirmed. It first joined the First, Fourth and Ninth circuits in holding that, following a jury trial on the merits, an appellate court has jurisdiction to hear an appeal of the district court's legal conclusions in denying summary judgment, but only if it is sufficiently preserved in a Rule 50 motion. The court held that, because Traxxas' Rule 50 motion preserved its objection to the district court's summary judgment ruling, the court had jurisdiction to hear the appeal. On the merits, the court agreed that the licensing agreement was ambiguous because the terms used in the agreement did not have a definite and precise meaning. The court also held that Feld's interpretation of the disputed terms was reasonable. It accordingly affirmed the district court's judgment. Feld Motor Sports, Inc. v. Traxxas, L.P., Fifth Circuit, No. 16-40686, 6/30/17

16-40686
CARL E. STEWART, CHIEF JUDGE

Court of Appeals of Texas, First District

Rodriguez v. State of Texas, 01-16-00401-CR (TexApp Dist 05/16/2017)

Two men wearing bandanas robbed Marissa Alvarez at gunpoint outside her apartment. Minutes later, three men attempted to rob someone outside a nearby doughnut shop. Police responding to Alvarez's robbery were diverted to the second incident. After locating the suspects' car, police arrested appellant Jessy Rodriguez hiding in a dumpster, and arrested the other two suspects as well. Police found Alvarez's purse and driver's license in the car, along with appellant's wallet. A jury convicted appellant of aggravated robbery, sentenced him to 38 years and a $5,000 fine. An appeal followed, challenging the sufficiency of the evidence to convict appellant as a primary actor or under the law of parties. The court found no evidence to convict appellant as a primary actor. The court noted that Alvarez did not identify appellant as one of the two men who robbed her, and that the state's theory was that appellant served as the getaway driver for the other two suspects. However, the court also found that "courts have repeatedly upheld convictions under the law of parties" when the convicted individual drove a getaway vehicle. The court found that the evidence of Alvarez's belongings in the getaway car, along with "the extremely short time-span of events," allowed the reasonable inference that all three suspects were involved in both incidents. The court held the evidence was sufficient to convict appellant under the law of parties and affirmed the trial court's judgment. Jessy Rodriguez v. The State of Texas, Houston 1st Court of Appeals, Case No. 01-16-00401-CR, 5/16/17.

01-16-00401-CR
EVELYN V. KEYES, JUSTICE

Court of Appeals of Texas, First District

In re Kendall Bell, 01-17-00373-CR (TexApp Dist 06/13/2017)

Relator Kendall Bell was convicted of aggravated robbery. He was released from custody on bail when the appeals court reversed his transfer from juvenile court to criminal district court. However, the Court of Criminal Appeals vacated the reversal and remanded the case to the trial court to consider a jurisdictional issue, at which point the Court of Criminal Appeals then ordered relator's arrest because its action reinstated his conviction. Relator then moved for the Appeals Court to set bail, which the court denied because the express terms of Tex. Code Crim. Proc. art 44.04(h) precluded bail once a conviction is reinstated. Relator then filed for mandamus relief in the Appeals Court. The court found that relator did not address the terms of art. 44.04(h) requiring the court to place him in custody immediately upon the reinstatement of his conviction and allowing the trial court to modify bail. The court denied the petition for writ of mandamus. In re Kendall Bell, Houston 1st Court of Appeals, Case No. 01-17-00373-CR, 6/13/17.

01-17-00373-CR
REBECA HUDDLE, JUSTICE

United States Court of Appeals, Fifth Circuit

Alvarez v. City of Brownsville, 16-40772 (5th Cir. 06/26/2017)

Alvarez pled guilty to assaulting a police officer. After being jailed for several years, video emerged which showed that Alvarez was innocent. A state court declared that Alvarez was innocent of the charges and he was freed. Alvarez then sued the city and several officials under §1983, alleging that they did not turn over potentially exculpatory evidence in violation of Brady v. Maryland. The district court found for Alvarez and a jury awarded him $2 million in damages. The court reversed. It held that Alvarez did not have a constitutional right to impeachment or exculpatory evidence when he pled guilty. It accordingly held that Alvarez's guilty plea precluded him from asserting a Brady claim under §1983. Alvarez v. City of Brownsville, Fifth Circuit, No. 16-40772, 6/26/17

16-40772
WIENER, CIRCUIT JUDGE

Court of Appeals of Texas, Seventh District

Harris v. State of Texas, 07-16-00435-CR (TexApp Dist 05/30/2017)

Appellant Norris Harris, Jr. was convicted of possession of a firearm by a felon after a traffic stop in 2012. Police found a gun under the driver's seat. Appellant told the officer the gun was his but he no longer wanted the gun and that he had been released from prison in 2009. On appeal, appellant invoked the corpus dilecti rule, in which an extrajudicial confession is insufficient evidence of a crime and independent evidence must corroborate the confession. The court found that under Texas Penal Code §46.04(a)(1), a felon cannot possess a firearm for at least five years after release. The court found that in addition to confessing the gun was his, appellant provided independent evidence that he was within the 5-year window via his statement that he was released from prison in 2009. The court thus affirmed the trial court's judgment. Norris Harris, Jr. v. The State of Texas, Amarillo Court of Appeals, Case No. 07-16-00435-CR, 5/30/17.

07-16-00435-CR
BRIAN QUINN, CHIEF JUSTICE

Court of Appeals of Texas, Fourteenth

Simon v. State of Texas, 14-16-00138-CR (TexApp Dist 06/01/2017)

Appellant Simon was convicted of capital murder and sentenced to life with no parole. On appeal, he challenged the qualifications of the trial court judge, on grounds that the record did not reflect that the judge took the oath of office. The court found that an appellant can raise an issue of the judge's qualifications for the first time on appeal, but also found that McCloud v. State (527 S.W.2d 885) requires an appellant to make a prima facie case that the judge did not take the oath. "An appellate court generally indulges every presumption in favor of the regularity of the trial court proceedings," the court stated. Because the record in this case made no mention of the judge failing to take the oath, the court presumed he took it as part of regular court proceedings. The court rejected appellant's argument that the presumption of regularity does not apply to a visiting judge. Appellant based his argument on Herrod v. State (650 S.W.2d 814), but the court found that case carved out an exception to the presumption of regularity only for a district judge sitting in a county criminal court proceeding in Dallas County. The court noted that Herrod specifically stated the exception does not extend to a retired district judge sitting in district court, as was the case here. The court affirmed the trial court's judgment. Simon v. State of Texas, Houston 14th Court of Appeals, Case No. 14-16-00138-CR, 6/1/17.

14-16-00138-CR
MARTHA HILL JAMISON, JUSTICE

Court of Appeals of Texas, Ninth District

Sanders v. State of Texas, 09-16-00004-CR (TexApp Dist 06/21/2017)

A woman accused appellant Lyle Tracy Sanders of punching her in the face. She picked him out of a photo array at the police station. At trial, the woman identified Sanders as her assailant, and also testified – over appellant's objection – that she picked his photo out of the array. The jury convicted appellant of assault and an appeal followed, on grounds that the trial court should have sustained his objection to the testimony regarding the photo array. The court found that although such bolstering was traditionally disallowed, Texas Rule of Criminal Evidence 801(e)(1)(C) now expressly allows a witness to testify as to her previous out-of-court identification of a defendant. The court also noted that appellant had the opportunity to cross-examine the witness at trial about the previous ID. The court found appellant's issue "has no merit" and affirmed the trial court's judgment. Lyle Tracy Sanders v. The State of Texas, Beaumont Court of Appeals, Case No. 09-16-00004-CR, 6/21/17.

09-16-00004-CR
HOLLIS HORTON, JUSTICE

United States Court of Appeals, Fifth Circuit

Sammons v. USA, 17-50201 (5th Cir. 06/19/2017)

Congress created the Federal National Mortgage Association ("Fannie Mae") and the Federal Home Loan Mortgage Corporation ("Freddie Mac") to provide, among other things, liquidity to the residential mortgage market. During the financial crisis of 2008, the two entities faced a sharp reduction in the value of their assets and a loss of investor confidence. In response, Congress placed the enterprises into conservatorship with the Treasury Department purchasing $1 billion of preferred stock in each entity. Appellant held $1 million in noncumulative preferred shares and argued the amended purchase agreement permanently deprived him of the economic value of his preferred shares. He thus asserted that the amendment amounted to a regulatory taking and that he was entitled to $900,000 in just compensation. Appellee moved for, and was granted, dismissal for lack of subject-matter jurisdiction under Fed. R. Civ. Proc. 12(b)(1) because the Tucker Act vested exclusive jurisdiction for takings claims over $10,000 in the CFC. On appeal, the court affirmed the Tucker Act plainly provided that the CFC had exclusive jurisdiction over claims against the United States for more than $10,000. Further, the court noted that because, under binding precedent, the appellee's sovereign immunity can bar cases against it based on the Takings Clause, those cases fell into the "public rights" category. Thus, Congress can constitutionally require such cases to be heard in an Article I court, as it did in the Tucker Act. Therefore, appellant's constitutional challenge to the Tucker Act failed, and the court properly dismissed for want of jurisdiction. Sammons v. U.S., Fifth Circuit, Case No.: 17-50201, 06/19/2017

17-50201
JERRY E. SMITH, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

Reyes v. North Texas, 16-10767 (5th Cir. 06/27/2017)

The North Texas Tollway Authority (NTTA) oversees the Dallas North Tollway, President George Bush Turnpike, Sam Rayburn Tollway, and Chisholm Trail Parkway. In 2000, NTTA stopped manning all toll booths and instead introduced a system where drivers were charged for passage using TollTags. For drivers without TollTags who used the roads, they were identified using cameras and mailed a bill, requesting payment for the toll, plus an administrative fee if the toll went unpaid for certain periods of time. The plaintiffs used the roads, did not pay the toll, and were, as a result, sent bills for the unpaid tolls and administrative fees. They sued, alleging that the administrative fee was so much higher than the cost of collecting an unpaid toll that it violated the due process rights of drivers who incurred them. The district court held that there was a rational relationship between the administrative fee and NTTA's interest in recovering costs spent to collect unpaid tolls. The court affirmed. It held that, under the applicable rational basis review, the administrative fee was rationally related to NTTA's goal of recovering some of the costs associated with collecting unpaid tolls, and encouraging customers to switch to TollTags. Reyes v. North Texas Tollway Authority, Fifth Circuit, No. 16-10767, 6/27/17

16-10767
GREGG COSTA, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

Trevino v. Davis, 15-70019 (5th Cir. 06/27/2017)

Appellant was convicted of capital murder and sought to mitigate his sentence by introducing evidence of fetal alcohol spectrum disorder ("FASD"). When trial counsel was unable to obtain the testimony of appellant's mother whom was the main connection to the evidence of FASD, trial counsel put on a short presentation regarding mitigation during the punishment phase. Following denial of his state habeas petition, appellant filed a federal habeas petition raising for the first time ineffective assistance of trial counsel for counsel's lack of investigating and presenting mitigating evidence at the punishment phase. Initially the court granted such relief but was reversed at the Supreme Court level. On remand, appellant filed his second amended habeas petition which was denied as was a certificate of appealability. On appeal, the court held appellants IATC claim was procedurally defaulted because he did not raise it in his initial state habeas petition. The court affirmed denial concluding appellant's IATC claim failed because he had not shown that he was prejudiced by the mitigation investigation of his trial counsel. Further, the court found that despite the introduction of expert witnesses and affidavits, such evidence was insufficient to create a reasonable probability that appellant would not have been sentenced to death had it be presented to the jury. Accordingly, the judgment denying habeas relief was affirmed. Carlos Trevino v. Lorie Davis, Fifth Circuit, Case No.: 15-70019, 06/27/2017

15-70019
JERRY E. SMITH, CIRCUIT JUDGE

Supreme Court of Texas

Pidgeon v. Turner, 15-0688 (TexApp Dist 06/30/2017)

Plaintiffs sued the City of Houston and its mayor, challenging the city's decision to extend benefits to same-sex couples who were married in other states. The trial court agreed with the plaintiffs and issued a temporary injunction. While an interlocutory appeal was pending in the court of appeals, the Supreme Court held, in Obergefell v. Hodges, that states may not exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. As a result, the court of appeals reversed the temporary injunction and remanded the case to the trial court. The plaintiffs appealed. The court held that the court of appeals erred when it ordered the trial court to conduct further proceedings "consistent with" a Fifth Circuit decision (DeLeon v. Abbott), which held that Texas' defense of marriage act violated the federal Constitution. The court reasoned that DeLeon was a federal case that does not bind the state trial court. The court clarified, however, that the trial court could "consider" DeLeon. The court also held that the plaintiffs were not precluded from seeking injunctive relief on remand, and that nothing prevented them from seeking to "claw-back" benefits the city already paid. The court refused to decide the question in the first instance (as urged by several amici), because the issue had not been fully developed or litigated. Finally, the court made clear that, on remand, the city and its mayor could argue that they were entitled to immunity. Pidgeon v. Turner, Supreme Court, No. 15-0688, 6/30/17

15-0688
JEFFREY S. BOYD, JUSTICE

United States Court of Appeals, Fourth Circuit

Interest of R.S.-T., 04-16-00724-CV (4th COA. 05/17/2017)

A trial court terminated mother and father's parental rights to R.S.-T. The Department of Family and Protective Services had been monitoring the parents since the day after the child was born, after receiving reports that mother had tested positive for marijuana twice during pregnancy and other indicators of neglect and abuse. The trial court heard testimony from multiple case workers and other professionals that mother underfed R.S.-T., that mother and father ignored the department's safety plans for them, that mother and father had a physically abusive relationship, and that father was in jail twice since R.S.-T.'s birth. The court also heard testimony that mother had cognitive difficulties following a brain injury that impeded her progress in learning how to properly care for a child. On appeal, father challenged the sufficiency of the evidence that he was aware of risks to R.S.-T., and mother argued the department failed to make accommodations for her cognitive difficulties. On father's issue, the court noted that father was aware of mother's drug use during pregnancy and the physical violence between them, and held that his failure to follow the department's safety plan by itself was sufficient evidence to terminate his parental rights. On mother's issue, the court found that several caseworkers tried to work with her but she did not avail herself of the services offered. The court also found that because R.S.-T. was thriving in foster care, the trial court did not err in finding it his best interest to terminate mother's parental rights. The court affirmed the trial court's judgment. In the Interest of R.S.-T., a Child, San Antonio Court of Appeals, Case No. 04-16-00724-CV, 5/17/17

04-16-00724-CV
PATRICIA O. ALVAREZ, JUSTICE

Court of Appeals of Texas, First District

Gonzalez v. State of Texas, 01-15-00902-CR (TexApp Dist 05/16/2017)

Appellant Roel David Gonzalez lived with his girlfriend and her three daughters, ages 8, 10, and nearly 12 at the start of the relationship in 2008. The daughters reported no issues until after an incident in which appellant through a beer bottle at their mother, causing a gash in her head. After that point, the two younger daughters claimed that appellant molested the youngest at least twice. Before trial, appellant moved to obtain copies of the forensic interviews the daughters gave to police. The court denied the motion but allowed appellant's counsel and expert to view the videos of the interviews. The jury convicted appellant of aggravated sexual assault of a child and indecency with a child, with a total sentence of 20 years. An appeal followed on several issues. In one, appellant argued that Tex. Code of Crim. Proc. art. 39.15, requiring "reasonable access" to forensic interviews of child victims but prohibiting copies, is unconstitutional. He argued that any impeachment of witnesses would require him to play the tapes in court. The court found that art. 39.15 did not prevent appellant from preparing a defense, and therefore is not unconstitutional, because his counsel and expert were allowed access to the tapes. The court also noted that the jury had the tapes because the state entered them into evidence. On another issue regarding the sufficiency of the evidence, he noted inconsistencies between the interviews the daughters gave to police and their testimony on the stand, including whether the youngest was wearing shorts and whether appellant shined a flashlight in the first incident. The court found that Cici's testimony about the molestation alone was sufficient for a jury to convict and that the jury could resolve any conflicts in favor of the girls' testimony. The court also overruled two challenged statements the prosecutor made to the jury. In one, the court found that the distinction between "bashing" someone with a beer bottle and "throwing" it at her was legally meaningless. In the other, the court found the statement "don't let anyone make you feel bad about your verdict" did not strike over defense counsel's shoulders because it addressed counsel's argument, rather than criticize counsel directly. In both comments, the court also found that a jury instruction cured any error. The court affirmed the trial court's judgment. Roel David Gonzalez v. The State of Texas, Houston 1st Court of Appeals, Case No. 01-15-00902-CR, 5/16/17.

01-15-00902-CR
LAURA CARTER HIGLEY, JUSTICE

Supreme Court of Texas

King Street v. Texas Democratic, 15-0320 (TexApp Dist 06/30/2017)

King Street challenged the constitutionality of several Election Code provisions. The parties severed the facial challenge, created a new action, and filed cross motions for summary judgment. The trial court ruled in favor of Texas Democratic Party and the court of appeals affirmed. (The as-applied constitutional challenge remained pending in the trial court). The court first concluded that, based upon the limited record, King Street was not a political committee and, as a result, it refrained from considering King Street's facial challenges to the political committee definitions. The court held, however, that similar prudential concerns did not exist with respect to King Street's challenges to the Election Code provisions that regulate the activities of corporations, because those provisions clearly applied to King Street. The court rejected King Street's argument that the Election Code was constitutionally defective because it lacks evidentiary prerequisites to a private enforcement action, holding that adequate procedural safeguards existed within the Election Code and via other established mechanisms. The court also rejected King Street's facial challenge to the Election Code's corporate contribution restrictions, holding that they were constitutional under Fed. Election Comm'n v. Beaumont. The court also reviewed the statute's campaign-contribution definition and found that it was not circular or vague, as King Street argued. King Street Patriots v. Texas Democratic Party, Supreme Court, No. 15-0320, 6/30/17

15-0320
EVA M. GUZMAN, JUSTICE

Court of Appeals of Texas, First District

Midway v. O&V, 01-17-00050-CV (TexApp Dist 06/29/2017)

Midway owns and operates certain commercial properties in Houston. O&V is one of its tenants. After the parties were unable to agree on whether O&V was entitled to any rent credits, Midway took the position that O&V was in default for failing to pay rent, and that it needed to vacate the space within three days. O&V filed a petition in Harris County district court, seeking a declaratory judgment that it was not in default and an injunction against Midway commencing any eviction proceedings. The court entered a TRO and a subsequent injunction. The court reversed. It held that, because O&V had an ability to defend itself in an eviction proceeding, it had an adequate remedy at law, and thus could not show irreparable harm. Midway CC Venture I, L.P. v. O&V Venture, LLC, First District Court of Appeals, No. 01-17-00050-CV, 6/29/17

01-17-00050-CV
SHERRY RADACK, CHIEF JUSTICE

Court of Appeals of Texas, Fourteenth

In re Invum, 14-17-00449-CV (TexApp Dist 07/05/2017)

Relator Invum Three, LLC purchased a property at a foreclosure sale. Relator sued to evict the previous owner, Ronald Ricks, and when Ricks failed to appear at trial, the court awarded possession to relator. When the sheriff posted the writ of possession at the property about two weeks later, Ricks moved to stay the writ and moved for a new trial, the trial court stayed the writ, and relator sought mandamus relief. The court found that Tex. R. Civ. Proc. 510.13 did not give the judge discretion to stay the writ of possession. The court found the statute allows a judge to stay a writ of possession only if the appellant files a supersedeas bond within 10 days from judgment, which had not happened here. The court granted conditional mandamus relief, directing the judge to vacate his order staying the writ. In re Invum, Houston 14th Court of Appeals, Case No. 14-17-00449-CV, 7/5/17.

14-17-00449-CV
KEVIN JEWELL, JUSTICE

Court of Appeals of Texas, Second District

Read v. Verboski, 02-16-00399-CV (TexApp Dist 07/06/2017)

On the night of February 17, 2013, appellee called the police to report an accident involving appellant's vehicle. The police report contained a statement by appellee that he did not witness the accident but drove by the scene after it occurred. Appellant was subsequently convicted of driving while intoxicated, felony repetition. Appellant filed the underlying civil suit alleging that he had been wrongfully convicted because of appellee's false statement recited in the police report and his perjury during appellee's trial. Specifically, appellant alleged that appellee's statement that "he observed an older SUV had ran off the road into the ditch and was struck" was later contradicted by appellee's statement that he had not witnessed the accident. Appellee moved for, and was granted, dismissal arguing that any statements made in the due course of a judicial proceeding could not form the basis of a suit for damages for defamation. On appeal, the court affirmed holding appellant cannot receive compensation under Tex. Civ. Prac. & Rem. Code Ann. §103.001 as it must be filed with the Texas Comptroller of Public Accounts. Further, appellee's statements made during judicial proceedings were absolutely privileged and could not serve as the basis of a suit for damages. Reagan v. Guardian Life Ins. Co., 166 S.W.2d 909, 912 (Tex. 1942) Moreover, appellee's statements to the police were entitled to a qualified privilege. The court noted even if the statements were false, appellant could not show harm as it was the responding officer's investigation that led to his arrest and conviction. Finally, appellant cannot recover from appellee for actions of the state as a matter of law. Accordingly, the court affirmed dismissal. Read v. Verboski, Fort Worth Court of Appeals, Case No.: 02-16-00399-CV, 07/06/2017

02-16-00399-CV
MARK T. PITTMAN JUSTICE

Court of Appeals of Texas, Eighth District

Reynolds v. State of Texas, 08-14-00307-CR (TexApp Dist 06/30/2017)

Following appellant's consent to search two concealed bags, officers found bottles of Prometh Codeine cough syrup, several vacuum-sealed baggies containing a total of 11,320 ecstasy pills and baggies containing a total of seven pounds of marijuana. Appellant was subsequently convicted of manufacture or delivery of methylenedioxy methamphetamine and possession of more than five but less than fifty pounds of marijuana. The trial court assessed his punishment at imprisonment for twenty years. On appeal, appellant challenged the denial of his motion to suppress contending that his consent to search was not voluntary and the search exceeded the scope of the consent given. Additionally, appellant challenged the admission of evidence, exclusion of photographs, and sufficiency of the evidence to support a conviction. The court affirmed holding the evidence supported that appellant freely and voluntarily consented to the search and that a reasonable person would not understand that his consent to search the room and his luggage was limited to his own search of the bags. Further, although appellant raised an objection regarding evidence discovered, he failed to timely object each time the evidence was offered and he did not obtain a running objection; therefore, appellant waived the complaint raised on appeal. Moreover, the trial court did not abuse its discretion by allowing appellee to offer evidence despite appellant's offer to stipulate. Further, any error that may have occurred by the exclusion of photographic evidence did not have a substantial and injurious effect or influence on the jury's verdict. Finally, the court found the evidence and inferences drawn therein was sufficient to support appellant's conviction. Keith Reynolds v. The State of Texas, El Paso Court of Appeals, Case No.: 08-14-00307-CR, 06/30/2017

08-14-00307-CR
YVONNE T. RODRIGUEZ, JUSTICE

Court of Appeals of Texas, Fifth

Drake v. Walker, 05-16-00306-CV (TexApp Dist 07/06/2017)

Appellant Eric Drake sued his dentist and the owner of the dental clinic for negligence. The suit started in 2011 when appellant petitioned for pre-suit depositions in Dec. 2011 under Tex. R. Civ. P. 202.1(b). He later non-suited that claim and filed complaints against the dentists in Dec. 2013; they answered shortly thereafter and in Feb. 2014 filed a motion to dismiss. A slew of litigation followed, including a dismissal of appellant's claims, an appeal, and motions by appellant to recuse the judge. The appeals court remanded the case in May 2015; on remand, the trial court dismissed the case for failure to provide an expert report within 120 days as required. An appeal followed on grounds that the 120-day window was tolled while the case was on its first appeal. The dentists argued that the 120-window began running at the Rule 202 filing in Dec. 2011, but the court found the window begins running from the time of the actual claim because a 202 filing would not necessarily make a claimant aware that a claim would be asserted against him or her. Furthermore, the court found that the window was tolled while the case was on appeal. The court stated that "appellees have not articulated a purpose, nor can we conceive of one" that an expert report should be served while a case is on appeal from a dismissal. The court also noted that filing the expert report during appeal would force the dentists to reply to the report during appeal "or risk waiving their objections." The court held the window was tolled until at least May 2015, in which case the expert report was timely filed. The court rejected appellant's issues seeking to recuse the trial judge, finding he showed no evidence of racial or religious bias and that a judge does not have to recuse himself when he is a material witness in a separate case filed by the party seeking his recusal. The court reversed the trial court's order dismissing the case, rendering judgment denying the motion to dismiss, and remanded for further proceedings. Drake v. Walker, Dallas Court of Appeals, Case No. 05-16-00306-CV, 7/6/17.

05-16-00306-CV
DOUGLAS S. LANG, JUSTICE

Court of Appeals of Texas, Second District

In the Interest of G.B., 02-17-00055-CV (TexApp Dist 07/06/2017)

G.B., a fourteen-old male, was indicted for his alleged involvement in a murder (after another individual allegedly shot and killed a store owner, G.B. entered the store and stole money and items). The state filed a motion to transfer G.B. to district court to be tried as an adult. After conducting a hearing at which both the state and G.B. presented witnesses, the juvenile court granted the state's petition. Citing specific testimony and evidence, it found that there was probable cause to believe that G.B. had committed the offense; G.B. was of sufficient sophistication and maturity to be tried as an adult; that the likelihood of his reasonable rehabilitation by using services available to the juvenile court was low; and that, because of the seriousness of the alleged offense, the welfare of the community required criminal proceedings. G.B. appealed, arguing that the juvenile court did not specifically articulate a factual basis for its decision and, instead, simply parroted language from the statute. The court disagreed and affirmed the juvenile court's judgment. It held that the record showed that the juvenile court properly considered, assessed and weighed the relevant factors, and that there was ample evidentiary support for its factual findings. In The Matter of G.B., Second District Court of Appeals, No. 02-17-00055-CV, 7/6/17

02-17-00055-CV
BONNIE SUDDERTH JUSTICE

United States Court of Appeals, Fifth Circuit

USA v. Fidse, 16-50250 (5th Cir. 07/07/2017)

Fidse pled guilty to one count of conspiring to obstruct an agency proceeding and one count of conspiring to make false statements in a terrorism investigation. The pre-sentence report recommended an enhancement based upon a provision in the sentencing guidelines that enhances a defendant's sentence if the offense was a felony that involved, or intended to promote, a federal crime of terrorism. The district court agreed, adopting the government's proposed findings and conclusions of law. The court affirmed. It held that Fidse's conviction qualified for the enhancement if it was intended to promote a federal crime of terrorism. The court held that, under the "clear error" standard of review, the district court did not clearly err in concluding that a task force was specifically investigating a possible conspiracy to support terrorism and in concluding that, at least one purpose of Fidse's false statements was to obstruct that investigation. The court noted that its conclusion aligned with other circuits in cases with similar facts. United States v. Fidse, Fifth Circuit, No. 16-50250, 7/7/17

16-50250
STEPHEN A. HIGGINSON, CIRCUIT JUDGE

Court of Appeals of Texas, Second District

In the Interest of K.W., 02-17-00077-CV (TexApp Dist 07/06/2017)

The father of a minor child appealed from the trial court's judgment terminating his parental rights on constructive abandonment grounds. His court-appointed appellate counsel filed a motion to withdraw, accompanied by a brief in which he asserted the appeal was frivolous. The court reviewed the record and the brief filed by the court-appointed appellate counsel and agreed the appeal was without merit. It accordingly affirmed the trial court's judgment. In the Interest of K.W., Second District Court of Appeals, No. 02-17-00077-CV, 7/6/17.

02-17-00077-CV
TERRIE LIVINGSTON, CHIEF JUSTICE

Court of Appeals of Texas, Second District

Villarreal v. Fowler, 02-16-00474-CV (TexApp Dist 06/29/2017)

Appellee hired appellant to perform counseling services for her three minor children but appellant, in violation of the administrative code, instead allegedly defamed and emotionally abused the children causing appellee "continued financial damage and an ongoing need for additional counseling." In addition to claims for breach of contract, defamation, and violation of the DTPA, appellee alleged a "health care liability claim." Appellant moved to dismiss contending appellee failed to serve her with an expert report; appellee responded that an expert report was served on appellant's prior counsel. Following denial, appellant amended her motion arguing the clinical review was no report and that appellee failed to serve a curriculum vitae from a qualified physician. The trial court again denied dismissal. On appeal, the court reversed and remanded holding the clinical review did not contain the opinion of an individual with expertise that appellee's claim had merit. The court further found it was no report and the trial court had no option but to dismiss appellee's health care liability claim. The court noted the clinical review failed minimal expert-report standards because instead of opining that appellee's claim had merit, its author opined that appellant violated several ethical rules and merely recommended that appellee consult with an attorney. As none of these purported ethical violations implicated the specific health care liability claim that appellee alleged, the court found no expert report was timely served and the trial court was obligated to dismiss the claim. Accordingly, the court reversed the trial court's denial of dismissal. Villarreal v. Fowler, Fort Worth Court of Appeals, Case No.: 02-16-00474-CV, 06/29/2017

02-16-00474-CV
BILL MEIER, JUSTICE

Court of Appeals of Texas, Fifth

D.K.W. v. The source for publicdata.com, 05-16-00815-CV (TexApp Dist 06/28/2017)

Appellant D.K.W. was charged with disorderly conduct and received deferred adjudication, which was dismissed the next year. Several years later, when she began a job search, she obtained a court order to expunge her record. The website PublicData.com, which had posted appellant's arrest record, declined to remove it even after she notified the company of the expunction order, and she sued. The trial court granted summary judgment for PublicData and an appeal followed, challenging each of the grounds PublicData raised in its defense. In one issue, the court rejected PublicData's argument that appellant lacked standing because she did not suffer a concrete injury. The court found that appellant had statutory standing under Tex. Code Crim. Proc. §109.005. The court rejected PublicData's argument that the Supreme Court requires a concrete injury under Spokeo, Inc. v. Robins (136 S. Ct. 1540). The court noted that the Supreme Court acknowledged in Spokeo "that even certain kinds of intangible harms may be 'concrete' for purposes of" Constitutional standing and that legislatures are equipped to identify those harms. Furthermore, the court found that posting the arrest record created a material risk to appellant because potential employers might find it online, contravening the policy behind expunction statutes. In another issue, the court rejected PublicData's argument that the record was not "published" because no one but appellant's lawyer accessed the information. The court found that PublicData relied on a common-law definition of "publication" that applies in defamation claims, whereas appellant filed her claim under the expressly defined definition of "publish" in Tex. Bus. & Com. Code §109.001(4). In a similar issue, the court found appellant did not have to prove "independent damage" to recover for her claims. The court rejected several other arguments by PublicData, reversed the trial court's ruling, and remanded for further proceedings. D.K.W. v. The Source for PublicData.com, Dallas Court of Appeals, Case No. 05-16-00815-CV, 6/28/17.

05-16-00815-CV
JASON BOATRIGHT JUSTICE

Court of Appeals of Texas, Eighth District

In Re Jesus, 08-17-00053-CR (TexApp Dist 06/30/2017)

Relator Jesus Gandara, Jr. pled guilty in 2015 to misdemeanor theft and the court sentenced him to two years of supervision. In November 2016, by which time he had paid all court costs and fees, relator applied for early discharge to attended graduate school in New Mexico. Relator's supervision officer testified he had been working as a contract employee for a year and his December income was $97.28. The judge stated he believed relator had not been working, and ordered relator to pay a $3,000 fine and extended his supervision for three years. Relator then filed for emergency mandamus relief. The court found that the trial judge did not have the authority to impose a fine under Tex. Code Crim. Proc. art. 42A.752(a)(3) because he did not find a violation of relator's community supervision. The court found the same provision allowed the judge to extend supervision at his discretion for good cause. The court found that the evidence of relator's low salary in a single month was not "good cause" to assume he had not been working, as he was employed as a contract employee and might have had a volatile income despite working faithfully. The court thus granted conditional mandamus relief, directing the trial court to set aside his order. In Re Jesus Gandara, Jr., El Paso Court of Appeals, Case No. 08-17-00053-CR, 6/30/17.

08-17-00053-CR
YVONNE T. RODRIGUEZ, JUSTICE

United States Court of Appeals, Fifth Circuit

Rivera v. Bonner, 16-10675 (5th Cir. 07/06/2017)

Rivera was sexually assaulted by a jailer (Fierros) at the Hale County jail. Fierros had been hired despite the fact he had been twice arrested for indecency with a child by sexual contact. Furthermore, Rivera's sexual assault occurred approximately six months after another jailer at the same facility sexually abused a female detainee. Rivera sued under §1983, alleging that the defendants were deliberately indifferent to the risks associated with hiring Fierros and that they inadequately trained and supervised jail employees after the prior assault. The district court granted the defendants' motion for summary judgment on the basis of qualified immunity. The court affirmed. It agreed that the connection between Fierros' prior arrests and his assault on Rivera was not strong enough to show that the defendants were deliberately indifferent in hiring Fierros. It also held that, because the jail took some steps after the prior sexual assault (including reminding staff that sexual exploitation of detainees was prohibited), and because it was not clearly established at the time of Rivera's assault that appellees needed to make significant changes to their training, supervision and policies in response to the prior incident, the district court did not err in concluding that the defendants were entitled to qualified immunity with respect to Rivera's inadequate training and supervision claims. Rivera v. Bonner, Fifth Circuit, No. 16-10675, 7/6/17

16-10675
EDWARD C. PRADO, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

Brinsdon v. McAllen, 15-40160 (5th Cir. 07/03/2017)

Brinsdon filed a §1983 suit against her school district, Spanish teacher and high-school principal, alleging that they violated the First Amendment by requiring Brinsdon to recite the Mexican pledge of allegiance as part of a Spanish III assignment, and that they violated the Equal Protection clause when they removed Brinsdon from her Spanish III class because of her reaction. She sought an injunction, declaratory judgment and nominal damages. The trial court ruled in favor of the defendants. The court affirmed. It first held that, because Brinsdon had already graduated from high school, her equitable claims were moot. It next held that, because Brinsdon had not shown that there was an official district policy, or that the district had knowledge of the assignment, there could be no municipal liability. It finally held that the individual defendants were not ignoring clearly established law when compelling a recitation of the Mexican pledge or removing Brinsdon from class. Brinsdon v. McAllen Indep. Sch. Dist., Fifth Circuit, No. 15-40160, 7/3/17

15-40160
LESLIE H. SOUTHWICK, CIRCUIT JUDGE

Court of Appeals of Texas, Fourteenth

Rosenberg v. Imperial, 14-16-00978-CV (TexApp Dist 07/06/2017)

Appellant, an economic development corporation organized under the Development Corporation Act of 1979, entered into a performance agreement with appellee, a nonprofit organization that promoted and produced performance and visual arts, whereby appellee would lease, renovate, and operate an arts center and theater. After appellee began renovating the theater, it realized the conversion would be more time-consuming and expensive that it allegedly had been led to believe. Upon seeking an extension or alternate venue, appellant refused to amend the performance agreement and appellee ceased its progress. Appellee then sued appellant for breach of contract by unreasonably failing to grant an extension and sought a judgment declaring that the agreement constituted an absolute grant of funds. Appellant filed a counterclaim for breach of contract and declaratory judgment that appellee breached the agreement as well as filing a plea to the jurisdiction. The trial court granted in part the plea to the jurisdiction that it breached the agreement for failure to grant an extension but denied for the remaining claims. On appeal, appellant contended that appellee failed to establish a valid waiver of governmental immunity and the trial court erred in denying its plea. The court affirmed concluding the corporation did not enjoy government immunity from suit on these facts, and thus appellee was not required to establish a waiver of immunity. Accordingly, the court affirmed the trial court's partial denial of appellant's plea to the jurisdiction. Rosenberg Development Corporation v. Imperial Performing Arts, Inc., Houston 14th Court of Appeals, Case No.: 14-16-00978-CV, 07/06/2017

14-16-00978-CV
KEVIN JEWELL, JUSTICE

Court of Appeals of Texas, Eighth District

In Re Dish Network, 08-16-00300-CV (TexApp Dist 06/30/2017)

Yvette Delgado worked as a human resources manager for relator DISH Network for nearly eight years. During that time, she often assisted relator's outside counsel, Hagan Noll & Boyle. After relator terminated Delgado, she sued for discrimination and retaliation, and relator moved to compel arbitration. Delgado served relator with discovery requests and requested the trial court continue the hearing to allow discovery. Relator asserted the documents requested were protected by attorney-client privilege, but the trial court compelled discovery and relator sought mandamus relief. The court found that HNB established a prima facie case that it served as relator's attorney and that no conflicting attorney-client relationship existed between HNB and Delgado. With the burden of proof then shifting to Delgado, she attempted to show she qualified for a joint-client exception under Tex. R. Evid. 503(d)(5). The court found that Delgado showed no contractual relationship between herself and HNB, and that she failed to show evidence of an implied attorney-client relationship, as she showed no specific facts about cases in which she testified for relator under advice from HNB or instances in which she discussed employment policy with HNB. The court thus held that Delgado failed to establish an exception to attorney-client privilege. Based on this holding, the court found the trial court had no basis to defer a ruling on the motion to compel and therefore held the trial court abused its discretion by doing so. The court granted conditional mandamus relief and ordered the trial judge to set aside the order compelling discovery and to rule on relator's motion to compel arbitration. In Re DISH Network, El Paso Court of Appeals, Case No. 08-16-00300-CV, 6/30/17.

08-16-00300-CV
YVONNE T. RODRIGUEZ, JUSTICE

Court of Appeals of Texas, Second District

Carter v. Harvey, 02-16-00153-CV (TexApp Dist 06/29/2017)

Erwin Lee Harvey petitioned the court to appoint a receiver to sell a plot of land. He owned seven-eights of the land and appellant Jay Wayne Carter, Jr. owned the remaining one-eighth. Harvey argued the plot, an elongated rectangle, could not be partitioned equitably due to unique characteristics. Only the northern half had an access road, the land housed buildings from a long-defunct company (CWS) that appellant partially owned, and the central portion of the plot housed a wind turbine owned by appellant's son as a fixture of CWS' successor. After hearing testimony from both parties and expert witness Jim Henderson, the court granted summary judgment for Harvey and appointed a receiver. An appeal followed, challenging the sufficiency of the evidence that an in-kind partition could not be achieved. The court found that Henderson testified that any partition that included the turbine in Carter's share would damage the value of both subsequent properties, and that Carter testified he would not accept a division without the turbine. The court thus held that even if an in-kind partition was theoretically possible, it could not be achieved in practice. In another issue, appellant argued that as a 28 percent stockholder of the defunct company, he was entitled to that percentage of improvement to the value of the land due to the buildings CWS erected. He conceded that CWS had lost its right to sue because it had been defunct more than three years, but he argued that the company had assigned its right to sue to shareholders. However, the court found that a shareholder's right to a derivative suit dies along with the company's right to sue, under Alsheikh v. Altawil (2015 WL 392220). The court affirmed the trial court's judgment. Carter v. Harvey, Fort Worth Court of Appeals, Case No. 02-16-00153-CV, 6/29/17.

02-16-00153-CV
TERRIE LIVINGSTON, CHIEF JUSTICE

Court of Appeals of Texas, Twelfth

In Re Smith County, 12-17-00140-CV (TexApp Dist 06/30/2017)

Former Smith County Judge Joel Baker closed three meetings of the Smith County Commissioners Court to the public, during which the commissioners discussed installing speed cameras in school zones. After the Texas Attorney General's office prosecuted Baker, who had by then retired, a citizen filed a FOIA request with the Attorney General's office for documents from the closed meetings. A judge ordered the release of agendas and recordings relating to the speed camera discussion, the citizen uploaded the recordings to the Internet, and a flurry of media coverage ensued. Relator Smith County then filed for mandamus relief in the form of an emergency stay. The appeals court granted the emergency stay, and the trial judge amended his order to delete the language ordering the release of agendas and recordings. The Attorney General then argued the motion for mandamus was moot, but relator continued to press it, arguing its employees faced potential jail time if they did not comply. The court found that the relevant statute requiring relator to "preserve" its agenda and recordings of closed meetings, Gov. Code §551.104, was moot in light of the fact that the recordings had been publicized. The court rejected relator's argument that the writ should be considered under the "public interest exception," noting that the Texas Supreme Court has not addressed whether that exception applies to the mootness doctrine. The court vacated its emergency stay and denied the petition of writ of mandamus as moot. In Re Smith County, Tyler Court of Appeals, Case No. 12-17-00140-CV, 6/30/17.

12-17-00140-CV
JAMES T. WORTHEN, CHIEF JUSTICE

Court of Appeals of Texas, First District

Binnion v. State of Texas, 01-15-00770-CR (TexApp Dist 06/29/2017)

Appellant Royce Binion, Jr. stole more than $740,000 from his company through a fake invoice scam. He had authority to approve purchases of less than $5,000, and invoiced a series of purchases through a straw company purportedly run by a friend. The company's auditor, Brad Ortega, investigated appellant, and the state charged appellant in an indictment that named Ortega as the complainant rather than the company. The trial court convicted and sentenced appellant to five years, and an appeal followed on several grounds. In one issue, appellant argued that because the state listed Ortega as the owner of the money, the state was required to show that Ortego had a greater right than appellant did to the money, and that the evidence failed to show as much. However, the court found that for purposes of the indictment, Tex. Penal Code §1.07(a)(35)(A) and Garza v. State (344 S.W.3d 409) defined an "owner" as anyone having care, custody, control, or management of property. It also found the evidence showed that Ortega, as the company's auditor, fit the definition, and the court thus overruled appellant's issue. In another issue, appellant argued the trial court improperly excluded evidence of his defense that his employer tacitly allowed the theft in exchange for his silence about safety issues at the company. The court found that appellant was allowed to establish his defense without the excluded evidence. The court also overruled a challenge to the state's use of Ortega as both the complainant and an expert witness, finding that appellant did not show anything in Ortega's testimony was improper. The court affirmed the trial court's judgment. Royce Binion, Jr. v. The State of Texas, Houston 1st Court of Appeals, Case No. 01-15-00770-CR, 6/29/17.

01-15-00770-CR
SHERRY RADACK, CHIEF JUSTICE

Court of Appeals of Texas, First District

Henderson v. State of Texas, 01-16-00729-CR (TexApp Dist 06/29/2017)

A trial court found appellant Damien Lamont Henderson guilty of felony murder of a 13-month-old child and sentenced him to life. He appealed, arguing no court had acquired jurisdiction over him because the Harris County 182nd District Court indicted him but the 177th District Court tried and convicted him. The court found that counties with more than one district court, such as Harris County, may assign and distribute cases within the county as they see fit under Tex. Gov't Code §24.024. The court noted that the 177th and 182nd both operate under the Harris County District Clerk and therefore share original jurisdiction for felony criminal cases. The court stated that the assignment of the trial and grand jury to different courts "is, at best, a procedural issue" rather than a jurisdictional one. The court noted that although jurisdictional issues may be raised for the first time on appeal, procedural issues are waived if not objected to at trial. The court found that appellant did not object to the indictment or trial proceedings in their individual courts, and thus held that appellant did not preserve his issue for appeal. The court affirmed the trial court's judgment. Damien Lamont Henderson v. The State of Texas, Houston 14th Court of Appeals, Case No. 01-16-00729-CR, 6/29/17.

01-16-00729-CR
RUSSELL LLOYD, JUSTICE

Court of Appeals of Texas, First District

Jay v. Compass, 01-16-00905-CV (TexApp Dist 06/29/2017)

Zabel is a law firm incorporated in Illinois and located in Chicago that specializes in tax law and real estate transactions. Zabel was the victim of a scheme whereby it received a counterfeit check (purportedly from a client), deposited the check in its trust account, withdrew its retainer ($2,500), and wired the remainder (approximately $383,000) to another entity, at the request of its client. Zabel then learned the check was counterfeit. State and federal authorities were unable to recover the approximately $383,000 that was wire transferred by Zabel to two foreign accounts. Compass Bank sued Zabel in Texas state court, alleging that it was liable for the full amount of the check. Compass alleged that the Texas state court had jurisdiction over Zabel because the counterfeit check was purportedly issued by a company in Harris county, so that Zabel must have believed it was doing business with a company in Texas. Zabel also argued that, because the check was drawn on a bank account in Harris county when Zabel deposited it, Zabel should have known that it would be presented for payment in Harris county. The trial court overruled Zabel's objection to personal jurisdiction. The court reversed. Even if the check indicated that it would be drawn on an account belonging to a Texas business, the court held that fact was insufficient to confer personal jurisdiction over Zabel where Zabel did not otherwise purposefully avail itself of the privilege of doing business in Texas, and where it did not have the requisite minimum contacts with Texas. Jay Zabel & Associates, Ltd. v. Compass Bank, First District Court of Appeals, No. 01-16-00905-CV, 6/29/17

01-16-00905-CV
LAURA CARTER HIGLEY, JUSTICE