East Texas Appeals Lawyer & Attorney : Jeff Rambin Law Firm : Civil and Criminal Appeals : 12th Court of Appeals, Tyler, Texas

Sieber v. Carson and Brookshire Grocery Company (Published Memo): If you are forty or over when you get hired, it's presumed that there's no age discrimination if you get fired.

Sieber got hired at age sixty seven when he granted hunting privileges to a Brookshire's manager.  Five years later, Sieber revoked the privileges on grounds that the manager and his son were bringing too many other people onto the land.  The manager vowed to get Sieber.  Six years later, after several write ups, the manager canned the seventy-eight year old Sieber.  Sieber sued, claiming retaliation, intentional infliction of emotional distress, and age discrimination.

The retaliation claim fails.  The law protects employees from certain types of on-the-job retaliation.  Disputes over hunting privileges isn't one of them. See Tex. Lab. Code Ann. § 21.055 (Vernon 2006).  I suppose this means that the manager could have fired Sieber immediately without there being any unlawful retaliation.

An intentional infliction of emotional distress claim requires more than a typical employment dispute.  By the way, unpleasant and unfair actions are part of a typical employment dispute.  Even if Sieber was terminated over his age or the hunting privileges, that's not "atrocious, and utterly intolerable in a civilized community." Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993).

The worst of it is that, since Sieber was over forty when he was hired, it's presumed that Brookshire's didn't discriminate based on age.  Ouch.  I turn forty this month.

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DeGrate v. Executive Imprints (Published) No evidence summary judgment affirmed in negligence and design defect case over exploding candle.  The precedential value of this case is probably limited because the Tyler court questions the briefing presented by the DeGrates.

Mrs. DeGrate got a new scented candle marketed by Executive Imprints.  After letting it burn for an hour or so, she went to blow it out.  The flame just got bigger.  She dropped the candle.  The hot wax splattered everywhere, including on her.  She and her husband bring many claims including negligence and strict liability.

Executive Imprints filed a no evidence motion for summary judgment.  The DeGrates responded with the report and affidavit of a Ph.D chemist.  The chemist believes that the candle had the wrong sort of wax, the wax pooled up too much, and the design of the candle allowed the wax to be heated to the flash point.

The Tyler court finds fault with the expert.  He doesn't back up his opinions.  So they're not evidence.

The Tyler court also finds fault with the briefing of the DeGrates.  In a footnote, the Tyler court says that the entirety of the DeGrate's briefing on the product liability claim was:

Under the doctrine of strict product liability, Appellants showed through the tendered summary judgment evidence that the candle was of a defective design since it was without a reasonable alternative design, as a fundamental element, marketed, manufactured and was unsafe for its purposes at the time it left control of Appellee and was sold posing an unreasonable risk factor for consumers.

So, if anyone cites this case against you, point out the footnote.

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Morris v. State (Unpublished Memo): Intoxication manslaughter conviction affirmed.  Morris and his passenger left the El Greco club in Kilgore at 12:30 a.m.  They headed towards Tyler on Highway 31.  For those not familiar with East Texas, that's a notorious liquor run road (Tyler dry, Kilgore wet).  Not the best place to be after dark, as this case shows.  Morris swerved into oncoming traffic.  His passenger was killed in the wreck.

Morris complais that the evidene wasn't legally or factually sufficient to convict him (see opinion for discussions of these standards of review).  But the investigating officer testified to skid marks on the scene that showed Morris was in the wrong lane.  The officer also smelled alcohol on Morris.  What's more, Morris complained of "heart pain" and was taken to the hospital.  His blood was drawn, tested, and came back at twice the legal limit.

Conviction affirmed.

Morris also tried to say that his sentence was unconstitutionally cruel and unusual.  Since he didn't make that complaint to the trial court, the Tyler court won't hear it on appeal.

 

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Tyler v. Crawford (Published Memo): Under Texas Rule of Appellate Procedure 20.1, the court reporter's ten day deadline to challenge a party's affidavit of inability to pay costs runs from the time the affidavit is actually put in the hands of the court, not from the date the party puts the affidavit in the mailbox. 

Interesting twist: On the off chance that his grounds for appeal don't get the job done, Mr. Tyler filed a motion asking the Tyler court to order him to present the grounds that would win.  Motion overruled

Also,since this case doesn't get to the meat of the inability to pay costs, let me point you to a prior case that does: "A horse, a horse, my appeal for a horse!"

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Morris v. State (Unpublished Memo): Morris got deferred adjudication community supervision on a theft charge.  Roughly a year and a half into it, Morris blew off reporting to his supervision officer, paying restitution installments, and doing monthly community service hours.  The State asked the trial court to proceed to final adjudication and sentence Morris to prison.  The trial court did.  Three years.

Morris appeals.  This is new, as appeals from deferred adjudication have only been allowed since 2007.  The State filed its motion to proceed to final adjudication just eleven days after the change in the law took effect. 

But the appeal is on the same terms as a revocation of probation.  Morris must show that the trial court's judgment is void.  Quoting the Court of Criminal Appeals, the Tyler court notes that:

[A] judgment is void only in very rare situations-usually due to a lack of jurisdiction . . . . A judgment of conviction for a crime is void when (1) the document purporting to be a charging instrument (i.e. indictment, information, or complaint) does not satisfy the constitutional requisites of a charging instrument, thus the trial court has no jurisdiction over the defendant, (2) the trial court lacks subject matter jurisdiction over the offense charged, such as when a misdemeanor involving official misconduct is tried in a county court at law, (3) the record reflects that there is no evidence to support the conviction, or (4) an indigent defendant is required to face criminal trial proceedings without appointed counsel, when such has not been waived . . . . While we hesitate to call this an exclusive list, it is very nearly so.

The next bad news for Morris is that a guilty plea counts as "some evidence" to support the trial court's judgment.  Having pled "guilty" to the underlying theft charge, and "true" to the State's grounds for revoking the deferred adjudication, Morris is out of luck on appeal.

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In re Tieri (Published): A two front custody battle.  On the one hand, there's New Jersey where the couple and the children lived for most of their lives.  On the other, there's Texas, where the mother, kids, and for a brief period, father lived as the marriage unraveled.  The father files for divorce in New Jersey and he gets custody there.  The mother files in Texas, and she gets custody here.  So it comes down to which court has jurisdiction.  It's a Uniform Child Custody Jurisdiction and Enforcement Act case raising two questions:

First, under the six month consecutive residency requirement of Tex. Fam. Code Ann. § 152.102(7), does a temporary absence of the children from the State of Texas a.) not matter as long as it meets the “temporary” threshold; b.) “freeze” the six month clock until the children come back to Texas; or c.) require a restart of the clock at zero?

The answer is most likely “c,” although parts of the decision could be read to mean “b”.

Second: If a custody proceeding is voluntarily dismissed in one state, can another state assume jurisdiction over custody as though the first custody proceeding had never been filed?

No.  Even though the case has been dismissed, the first state retains jurisdiction unless, along with the dismissal, it entered a specific finding that it has lost jurisdiction (for example, because neither parent lives in the state anymore).

2006

• January: Mother brings the kids from New Jersey to Texas.
• February: Father files divorce in New Jersey.
• March: While the mother and children are still in Texas, the New Jersey court awards custody to the father.
• April: Mother and children return to New Jersey because they’ve been ordered to appear at a hearing.  Other hearings are set, and they stay in New Jersey for somewhere between 22 to 26 days.  Mother and father reconcile.  Father dismisses New Jersey divorce.  All go to live in Texas.
• August: Father leaves Texas. Mother files for divorce in Texas.
• September: Texas court denies father’s special appearance. Asserts jurisdiction.
• October: Texas court names mother sole temporary managing conservator, denies visitation to father pending further order.

2007

• February: New Jersey court, on father’s petition, reinstates the New Jersey divorce.  New Jersey court reopens case on grounds that the mother had fraudulently induced the father to dismiss it. In other words, she never had any real intention of reconciling.  New Jersey court acknowledges that the Texas court has asserted jurisdiction, and refuses to rule on custody unless the Texas court relinquishes jurisdiction.  As for itself, the New Jersey court does not enter an order relinquishing jurisdiction or finding that the circumstances have (or had at any point in this process) deprived it of jurisdiction.
• April: Father files a motion in Texas to dismiss under UCCJEA.
• August: New Jersey court grants the divorce without deciding custody.  Texas court holds a telephonic hearing including both courts and counsel from both states.
• September: Texas court denies the father’s UCCJEA motion, holding that, at the time of the Texas divorce, the children had lived with the mother for six months, and in Texas for eight months (considering the their April ’06 presence in New Jersey as temporary).
• December: The father files a petition for writ of mandamus in Tyler.

The record is silent about what happened between September and December. The opinion doesn’t discuss issues of waiver and delay, so I’m guessing that there were motions for rehearing before the trial court. In any event, the Tyler court reviews the questions of law de novo. Since the children went back to New Jersey for a period, and since the New Jersey court didn’t enter an order waiving jurisdiction as part of the voluntary dismissal, New Jersey, not Texas, retains exclusive jurisdiction.
 

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Bailey v. State (Unpublished Memo): Evocative, provocative, loaded with death.  A reproach, but not a relic.  Yet sometimes, a source of justice.  Bailey is an African-American.  There were no African-Americans on his jury.  The Tyler court affirms his conviction of aggravated assault with a deadly weapon.

Bailey appeals on Batson grounds.  In 1986 the Supreme Court of the United States shifted the burden in jury selection.  Before Batson, defendants who felt that the prosecutor struck a prospective juror over race had to come up with proof that the prosecutor had an improper motive.  A daunting task as long as the prosecutor kept tight lips on the matter.  But the Batson decision changed that.  All a defendant need do is allege that a prospective juror was excluded based on race, and the burden then falls on the prosecutor to come forward with a race-neutral basis for the exclusion.  The move-counter-move doesn't end there.  The defendant can offer proof that the prosecutor's supposed legitimate basis is nothing but a pretext.

The Tyler court finds that the prosecutor's reasons were not a pretext.  The prosecutor used four of his ten strikes on four African Americans.  When Bailey lodged a Batson challenge, the prosecutor said that he struck the four because they were young, favored rehabilitation over punishment, or knew the defense attorney.  Bailey then pointed out that whites meeting those criteria had not been struck.  The prosecutor testified those prospective juror's ties to law enforcement outweighed their youth and rehabilitation leanings.  The trial court believed the prosecutor, and the Tyler court believed the trial court.

Bailey isn't exactly Tom Robinson.  Bailey admitted that he was the shooter, but said that he was't shooting at anyone -- he was just shooting in the air.  To prove a point to a man in the front yard, and in front of a house full of children.  "But," says the Tyler court, "shooting in a person's direction is not required to commit an aggravated assault."  Normally, that would end things. 

The prosecutor, however, unnecessarily alleged that Bailey shot at the man in the front yard.  Even so, the Tyler court doesn't get into the question of whether the prosecution must prove allegations that go beyond the statutory elements of the crime.  Let's assume they did have to prove it.  There was plenty of evidence that Bailey was lying -- that he was shooting at someone.  Thus there is evidence to support the conviction.

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Christopher v. State (Unpublished Memo): What county has venue when an officer feels something as he pats a suspect down, but doesn't conduct a strip search until he takes the suspect to a jail in a nearby county?  Answer: the county with the jail.

Christopher was pulled over 937 yards on the Smith side of the Smith/Cherokee county line.  He was pulled over because his car didn't have a front license plate.  To make matters worse, Christopher didn't have a driver's license, and his passenger had an open alcoholic beverage.  The DPS Trooper patted them down for weapons.  The Trooper didn't feel weapons, but did feel something he figured was contraband.  The Trooper then took the two to the Cherokee County Jail. A strip search of Christopher revealed several "Halloween bags" of cocaine in a place that it taint polite to mention.

Christopher appeals his Cherokee County convictions on grounds that Smith County had jurisdiction.  The statute on county-line crimes provides that: "An offense committed on the boundaries of two or more counties, or within four hundred yards thereof, may be prosecuted and punished in any one of such counties. . . ." Tex. Code Crime. PRC. Ann. art. 13.04 (Vernon 2005).  The Trooper had mistakenly believed that he was within that zone, and that's why he took Christopher to Cherokee County.  But that doesn't mean Christopher wins the venue issue.

The key question is whether it's fair to say that Christopher possessed cocaine in Cherokee County, or the Trooper manufactured venue by taking him there.  First off, the Trooper had no obligation to conduct a strip search in the field.  Second off, Christopher's back seat ride with the Trooper qualifies, in the words of the Tyler court as:

"voluntary under section 6.01(a) of the penal code in that it was not accidental. See Alford v. State, 866 S.W.2d 619, 623 (Tex. Crime. App. 1993); Brown v. State, 89 S.W.3d 630, 632-33 (Tex. Crime. App. 2002).

Finally, it's worth mentioning that Christopher resided in Cherokee County.  The venue challenge is denied conviction affirmed. 

By the way, Christopher's challenge to the chain-of-custody of the cocaine goes nowhere.  If you want to accuse the cops of misplacing something, try something a little less conspicuous than Halloween bags.

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Harris v. State (Unpublished Memo): It's tampering with evidence if there's an investigation underway, or you know you committed a crime.  Harris was riding his bike on the wrong side of the street at night without "proper illumination."  He was in what Tyler PD officers describe as a "high drug" area.  The cops stopped Harris to question him.  He mumbled his name, because he was busy eating something.  The officers asked Harris to spit whatever it was out of his mouth.  But all that was left in the spit and in his mouth were a few green leafy flakes.  The officers had their suspicions, and Harris admitted that he had swallowed a marijuana "roach."

By eating the evidence, Harris turned a possession charge into a tampering with evidence charge.  That's a bad deal.  Especially in light of his prior felony DWI.  He got sixteen years.

Harris contends that he can't be guilty of tampering with evidence because there was no ongoing investigation at the time he was chewing.  In essence, Harris contends you can't be convicted of tampering when the investigation was really into whether there was tampering.

But that misses the Tyler court's point.  Texas Penal Code Section 37.09 make the destruction of evidence illegal if there is an ongoing investigation or if you know you've committed a crime and you try to cover your tracks before an investigation even gets started.  The conviction is affirmed on that prong of the statute.

Harris also argues that sixteen years is disproportionately long for eating a roach.  The Tyler court rejects that argument because: 1. Harris waived it because he didn't make it to the trial court; 2. His sentence is within statutory guidelines so, at least on the face of it, the sentence is constitutional; and 3. The Supreme Court of the United States, in Rummel, affirmed the constitutionality of a habitual offender law that turned a $120.75 crime into a life sentence.

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Jones v. State (Unpublished Memo): Jones was beating the female passenger in his vehicle as he drove along US 69 outside of Tyler.  Another motorist heard her screams and called it in.  A Bullard PD officer responded, as did a Tyler PD officer who was off the clock and on the way home on US 69.  A high speed chase ensued.  Jones turned off of the highway, but kept up a breakneck pace along winding county roads.  Eventually the officers cornered Jones -- he abandoned his vehicle at the end of a dirt road, and was tracked down on foot.

Based on two prior felonies, and his use of the car as a deadly weapon, Jones got a 75 year sentence on an evading arrest charge.

Jones argues that the sentence is too stiff because the vehicle wasn't a deadly weapon.

Are you kidding?  Granted, as the Tyler court notes, a car isn't always a deadly weapon.  It depends on how the car is used.  For example, I suppose OJ's famous slow-motion White Bronco wouldn't qualify as a deadly weapon.  But a weaving 100 mph chase with other motorists swerving to save their lives?  That's certainly evidence to support the jury's deadly weapon finding.

Unfortunately, the Tyler court doesn't identify the vehicle involved by make or model, so I've attached a picture of a 1974 LTD, the car I drove in high school.  The car in the picture is available from Old 66 Classics in Kingman Arizona.  The one I drove was a little different from the picture.  It was a sedan, not a coupe.  And it was Brougham.

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Lewis v. State (Unpublished Memo): The State wanted to sentence Lewis as a habitual offender.  The State's initial notice of intent to use prior convictions was insufficient.  On remand, Lewis contended that the insufficient notice placed one of his prior convictions off-limits for sentence enhancement purposes.  The Tyler court, in keeping with prior cases, rejects that argument.  The consequence of the insufficient notice is a re-sentencing.  At that re-sentencing, the State has the option to issue a new notice and (if the new notice is proper) use all prior convictions for enhancement purposes.

In another point, Lewis challenges the State's proof that he is the same Lewis from earlier cases.  As in the earlier case of Hack v. State, a matching fingerprint from any document in the old case file will do.

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Flores v. State (Unpublished Memo): Conviction of DWI with child affirmed.  The question was whether Flores was the driver.  He and his family say no.  The Trooper says yes.  The jury believed the Trooper.

Flores was in a GMC Yukon with his wife and a young niece.  They had just left a party attended by many of their family members, including the parents of the child.  The father of the child was the first to be pulled over.  The Trooper was administering the standard battery of field sobriety tests when Flores saw the fix his brother was in.  Flores pulled over too.  Or was it Flores?

Here's a tip: I'm all for familial loyalty, but if you've been drinking, it's probably not a good idea to interrupt an officer giving a field sobriety test.  When Flores injected himself into the situation, and did not follow the Trooper's directives, the Trooper soon switched his focus to Flores.  Flores failed all of the field sobriety tests.

There was no dispute that Flores got out of the driver's side of his SUV. He says that he was in the back seat, not the front.  He contents that the Trooper was too busy with his brother at that time and didn't pay specific attention to whether he got out of the front seat or the back.  Flores, his wife, his brother's wife, and other family members who saw them loading up at the party all said that the wife was at the wheel.

The wife's testimony was perhaps too strong on this point.  The Trooper's dash cam shows the front passenger door of the Flores vehicle opening, and a foot coming out for an instant before the door was shut again -- all at a point when Mr. Flores was already out of the vehicle.  The problem with the wife saying she was behind the wheel at that time is that she was too petite to have reached across a GMC Yukon to have opened the passenger door and stuck her foot out -- at least not from the driver's side. 

The Tyler court holds that, even though the Trooper did not have a specific recollection of seeing Mr. Flores with his hands on the wheel, his testimony and the dash cam video were enough to support the conviction.

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Dewberry v. State (Unpublished Memo): In a case of aggravated assault via shooting, the issue was whether Dewberry was the triggerman.  A sprawling multiparty altercation started at a gas station, adjourned, and reconvened at the Notorious Grill (a quorum was present).  Then, in an astonishing breach of Robert's Rules of Order, someone got shot.

Browning was the victim.  He and a man named Pullins had initially called the meeting to order at the gas station.  At trial, both Browning and Pullins identified Dewberry as the shooter.  Dewberry says that evidence is insufficient to convict him.  Dewberry points out that, at the scene, the victim wasn't sure who shot him, and indeed, thought it was Pullins.  What's more, Dewberry's associate, Pullins only named Dewberry as the shooter after he, Pullins, became the focus of the investigation.

Justice Bass, as he is wont to do, addressed these points with the eloquence of the obvious:

[Browning's] initial confusion is understandable. Browning lay wounded in a dimly lit parking lot with his attention focused on the end of the gun barrel pointed at him. He had never seen [Dewberry] before and he naturally suspected Pullins, the man with whom he had quarreled twenty minutes earlier. The initial reluctance of [Dewberry's] companions to name him as the shooter needs no explanation.

The eyewitness testimony, though it had changed between the scene and the trial, was sufficient to support a conviction.  The only relief Dewberry gets is that his $10,000 fine was vacated by agreement because it went beyond what was authorized by the relevant section of the Penal Code.

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Hall v. State (Unpublished Memo): DWI conviction challenged on grounds that the officer who administered the horizontal gaze nystagmus test to Hall wasn't an expert in its use.  Under Court of Criminal Appeals authority, the reliability of the HGN test is presumed, leaving the training of the officer who administered the test as the only question.  Emerson v. State, 880 S.W.2d 759, 768-69 (Tex. Crim. App. 1994).  The Tyler court holds that this officer's "less than scholarly awareness of the recent literature on the subject and his unfamiliarity with any of apparently forty-seven types of nystagmus [i.e, non-DWI causes] goes to the weight of his testimony, not to its admissibility."

It didn't help Hall that he denied alcohol use, then admitted it, had alcohol on his breath, was unable to hold his head still, and was generally unsteady on his feet.

Although Mr. Hall fought the law and the law won, expect defense counsel to continue to mount challenges to the HGN.  Why?  Because here's what the prosecutors have to say about the test:

Nothing is worse for police and prosecutors than impaired drivers who have already been through the system three or four times.These hardcore offenders have learned not to make incriminating statements or take blood alcohol tests. They even practice the standardized field sobriety tests (SFSTs) in bars before they drive home.  Their heightened tolerance to alcohol and repetition of the tests often gives them an ability to display only a small number of impairment clues, but there is one SFST that cannot be practiced or physically controlled—the Horizontal Gaze Nystagmus (HGN) Test.

That is good news for police and prosecutors.  The HGN test is the most accurate of all the tests, the best test for apprehending drivers between .08% and .12%, and the most researched of all the SFSTs. Experience has shown that multiple offenders may be quick to refuse the walk & turn or the one-leg stand tests, but for whatever reasons, many will submit to the HGN test.

The quote is from this 2003 publication of the American Prosecutor's Research Institute.

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There are five opinions from the Supreme Court of Texas this morning.  One (In re S.K.A., et al) is from Tyler.  They're all one line per curiam opinions.  Here's the full text:

The petition for review is denied. In denying the petition, we neither approve nor disapprove the holding of the court of appeals regarding the constitutionality of Texas Family Code section 263.405(i).

I've posted before about this section of the Family Code.  Parents whose rights have been terminated for child abuse or neglect must do more than what is usually required to file an appeal.   They must file a statement of their grounds for appeal within fifteen days after the trial judge signs the order terminating their parental rights.

The cases denied today challenged the constitutionality of that requirement.

The case I posted about earlier challenged the constitutionality of that requirement as it applies to indigent parents, who can't get a free record of the proceeding before the trial court until after the fifteen days has already expired.  The earlier post gives more extensive background into this field.  So now that I've set it up, here is the link.

What do today's cases mean?  I take them as a shot across the bow to the Texas Legislature.  And it's not a subtle one.  I mean, really, five opinions, all the same, they're the only ones this week, with "we neither approve or disapprove" language that would have been inherent from a plain, one-word denial (which for non-lawyer readers would mean that the Supreme Court "is not satisfied that the opinion of the court of appeals has correctly declared the law in all respects, but determines that [the case] presents no error that requires reversal or that is of such importance to the jurisprudence of the state as to require reversal ....).  

For a while there, it looked like the FLDS cases were going to bring this issue to a head in a very visible way, perhaps forcing the Supreme Court of Texas to decide the issue.  While the heat has been turned down on the FLDS pressure cooker, the Supreme Court has made it clear that they've got some questions about the Family Code, and would prefer that the Texas Legislature handle the matter.

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In Friday's Orders of the Supreme Court of Texas, there was one Tyler case, In re Frost.  It's the divorce case where the husband and his attorney went into the wife's residence when the wife was out of town and conducted some "do it yourself" discovery. 

The wife had changed the locks on that residence.  So, in order to get into the house, the husband got a locksmith to make him a duplicate of the new key.  The wife figured that the changed locks (and the fact that the husband didn't ask her for a key) showed that the husband and his attorney should not have gone into the house.  But since they did, she figured that the husband's attorney had made himself a fact witness, and should be disqualified from continuing as counsel.

The trial court agreed and disqualified.  The Tyler court didn't and, via mandamus, reversed the trial court.  The Tyler court ruled that there were no temporary orders in place specifically concerning the residence, and that the wife had failed to show how she would be harmed by the husband's attorney continuing in his advocacy role.  The wife tried to get the Supreme Court of Texas to reinstate the trial court's decision.  The Supreme Court requested a response from the husband, but ultimately denied the wife's request.

This case, by far and away, has generated more interest than any single case on the blog.  It's easy to see why.  Everyone, lawyer or not, understands the drama inherent in divorce.  And the lawyers I've spoken to were interested because disqualification was at stake, and because this decision bears on what is and isn't fair game in family law cases.  So, if you're just plain interested, or if you've got a case with similar discovery or disqualification issues, here are the redrafted petition, the response, and the reply.

In the interest of full disclosure, I was involved behind the scenes in the redrafted petition.  I offer my congratulations to J. Bennett White, the husband's counsel, and to his associate, Chris Massey, who worked on the briefing before the Supreme Court.

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Johnson & Johnson v. Connor & Connor (Published): The Johnsons intended to reserve the minerals in 40 acres they were selling.  Two years after they deeded the property over to the Connors, the Johnsons discovered that the Connors had leased the minerals and were getting payments.   

Turns out the deed conveyed all of the Johnson's interest to the Connors. The Johnsons sued for reformation of the deed.  They claimed that the deed didn't match the contract.  But the contract wasn't much help either. By its plain language, it said that there were no minerals to be conveyed. (When I say plain language, I mean that the Tyler court pulled out the American Heritage Dictionary.)

So the Johnsons said that neither the contract nor the deed matched the parties' intent.  The real estate agent backed them up.  She gave an affidavit to the effect that she, the Johnsons and the Connors all had a clear oral understanding that the minerals were being reserved.

No matter.  The Connors presented affidavits saying there were no discussions about the minerals.  The Tyler court finds that there is no fact issue on the subject of mutual mistake. "The Connors were entitled to assume under the contract that they would be receiving all of the estate that the Johnsons owned."

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The Supreme Court of Texas reversed the Tyler court in Sells v. Drott.  Drott had sued Sells for specific performance.  Drott wanted Sells to follow through on her contract to deed some land over to him.  An answer was filed for Sells.  But, at a hearing in the case, Sells' daughter indicated that she might have signed the answer for her mother.  The daughter took the Fifth when the trial court let her know that might amount to forgery or practicing law without a license.  The trial court then struck the answer and entered a default judgment against Sells.  The Tyler court affirmed.  The Supreme Court of Texas reverses and remands, holding that:

In this case, the trial court put the cart before the horse, considering evidence before proper notice had been given. Assuming that Drott produced evidence that Sells had filed defective answers, in that they were signed on her behalf by her “next friend” daughter, Sells was entitled to an opportunity to prove that such defects were not true or not fatal or to argue that she had a right to cure the defects, if possible. The trial court erred in granting a default judgment against her without the requisite notice.

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Samet v. State (Unpublished Memo): A third grader testifies to a sexual assault that occurred when he was just about four years old.  The defense strategy: attack the kid.  Strategy backfires.  Opens the door to a photo of the grown male defendant wearing a white dress with pink hearts.  Also opens the door to a letter the defendant had written to his own son (a teenager at the time) asking the son to come to the father's house at an appointed hour, where the father would be wearing a dress and ready for sexual acts.  All of this is admissible because the victim remembers the defendant wearing a pink and white dress during the commission of the crime.

Under Tex. R. Evid. 403, there was also no error in admitting testimony that the defendant had, while changing a diaper when the defendant was one year old, fondled the victim's testicles.  That's too remote from what happened when the boy was almost four.  It's not very probative.  On the other hand, this evidence simply wasn't harmful to the defendant, in the light -- make that darkness -- of everything else.  So the trial court didn't abuse its discretion in admitting this testimony.

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Crabtree v. State (Unpublished Memo): Crabtree was surprised when the trial court sentenced her to two years of prison for criminally negligent homicide.  The Tyler court says she shouldn't have been.  Sentence affirmed.

Crabtree's counsel told her, correctly, that the State would recommend probation if she pled guilty and agreed to be sentenced by the trial court.  Crabtree's counsel also told her that the trial court "most always" went with the State's recommendation.  Apparently, Crabtree heard that as a guarantee.  It wasn't.

When the trial court gave a sentence that was more than the State asked, Crabtree filed a motion for new trial.  She alleged that her trial counsel was ineffective because he failed to let her know what might happen at sentencing.

The Tyler court sings Crabtree a song:

We beg your pardon,
Trial counsel never promised you a rose garden.
Along with the sunshine,
There's gotta be a little rain sometimes.

Well, OK, the Tyler court was a little more circumspect, holding that, no matter how Crabtree heard what was said, "by the plain meaning of the language used, Appellant's attorney made no guarantees."

Crabtree also alleged that her trial counsel's preparation was shoddy.  The Tyler court denied that ground of appeal as well, citing the Strickland case discussed in an earlier post.

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Delaney v. State (Unpublished Memo): Life sentence for robbery reversed for resentencing.  Delaney had originally received deferred adjudication for an aggravated robbery charge.  He violated the terms of deferred adjudication and was brought before the court for final adjudication.  At that hearing, the State put on evidence, over Delaney's objection, that Delaney had committed murder.  That was the only evidence the State put on.  The trial court sentenced Delaney to life in prison.  He tried to appeal, but couldn't because he had signed documents waiving his right to appeal.  Via a habeas corpus petition in the Court of Criminal Appeals, he was able to get those waivers set aside.  Delaney is then able to bring this direct appeal in the Tyler court.

Extraneous offenses may be considered during sentencing, but only if they are proved beyond a reasonable doubt. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1).  The Tyler court's review of the record showed that the trial court based the life sentence on the murder allegation, not on the aggravated robbery or the unspecified violations of deferred adjudication.  But the trial court's order didn't recite that the murder had been proven beyond a reasonable doubt.  Sentence set aside.

Delaney also appealed on grounds that the murder shouldn't have come up at sentencing at all because the State had failed to give the required notice.  Since they reversed the sentence for the reasons set out above, the Tyler court didn't address this issue.

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Kelley v. State (Unpublished Memo): Kelley contends that his 25 year sentence for aggravated robbery was based on improper evidence that his attorney didn't object to.  The State had an officer testify, second-hand, that Kelley denied and denied and denied firing his gun -- until they started to test his hands for gunpowder residue.  Since Kelley's trial attorney didn't object, Kelley's appeal is limited to "fundamental error."  The Tyler court rules that this isn't a case of fundamental error.

Kelley then urges that his conviction resulted from ineffective assistance of counsel.  Based on the Strickland decision, that ground is a no-go as well. 

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Carter v. State (Unpublished Memo): Conviction for intoxication manslaughter stands even though the defendant's intoxication may not have been the only cause of the victim's death.  Motorcycle operator and rider were both drunk.  Wreck killed the rider.  Rider had apparently been so drunk that she had trouble staying on the back of the bike -- in fact, she may have triggered the wreck by starting to slide off the seat. 

So was the wreck caused by the operator's intoxication, or by the rider's?  That's a trick question.  It's not an either-or proposition.  A "both" answer supports the conviction. "A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient."  Tex. Penal Code Ann. § 6.04(a) (Vernon 2003).

This is where time is crucial.  The operator tries to keep the focus entirely on the wreck itself.  But, much like it did in another case this year, the Tyler court focuses on the wreck, the earlier events on the road, and the even earlier decision to ride.  As to the wreck, the operator's own accident reconstruction expert admitted that his intoxication may have been "a factor."  (Incidentally, the operator's blood alcohol level, by ER blood sample, was .146)  In short, a sober rider might have been able to keep the bike on the road in spite of what the rider was doing.  A sober operator might also have maintained a more reasonable speed throughout the night's journey.  More to the point, a sober operator wouldn't have made this ride in the first place.  The operator had been drinking at a "biker bar" with his girlfriend/rider. He knew that she was literally stumbling drunk.  He admitted as much, and even said that he didn't start the ride until she had had a few minutes at the bar to sober up.

The operator's claim of charge error gets nowhere because his requested instruction wasn't a correct statement of the law.  His proposed instruction tried to box the jury into an either-or question.  The trial court was right to reject it.

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Academy of Skills & Knowledge v. Charter Schools USA, Inc. (Published): Multi-faceted dispute between a charter school and a management company.  The Tyler court earns its pay by working through every one of them.  Here are the basics:

Neither side can use CSUSA's wholly-owned subsidiary to advantage.  CSUSA created a subsidiary specifically for this school.  ASK's contract was with the subsidiary.  ASK tries to get to CSUSA via the "single business enterprise" theory.  No dice.  Then CSUSA takes a roll -- they want a judgment in their name for the management fees that, by contract, ASK owed to the subsidiary.  Snake eyes.

ASK's failure to prove that CSUSA breached a management contract dooms any complaints ASK has about the trial court's dismissal of categories of contract damages.

ASK's non-contract claims are scuppered by the economic loss rule.

CSUSA's "advances" to ASK were nothing more than loans.  Loans by a charter school management company to a school are prohibited by Tex. Educ. Code Ann. § 12.124(a) (Vernon 2006).  CSUSA got a judgment for them at the trial level.  That judgment is tossed by the Tyler court.

Neither side gets anything. 

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Barnes v. State (Unpublished Memo): Victim of domestic violence was wishy-washy, but his testimony, together with that of law enforcement, supports a conviction for aggravated assault with a deadly weapon. By wishy-washy, I mean that the victim's initial complaints that his girlfriend stabbed him dissolved under the power of "love" into an affidavit that he held her hands and forced her to stab him, but resolidified on the stand to a declaration that she had, in fact stabbed him.  The deputy's testimony strengthened the State's case with: 1. a contemporaneous account of the victim's first version, and 2. Barnes' statement at the scene that she wanted to kill the victim because he was having an affair.

There was another reason she gave for wanting to kill the victim, but the deputy didn't testify to that one.  Barnes wanted to get into evidence an assertion that the victim had molested her daughter.  All of the testimony on that point was admittedly hearsay.  But Barnes jumped straight into the relevancy/Tex. R. Evid. 403 issues.  The Tyler court doesn't jump with her.  Regardless of the arguments for relevance, the evidence is still hearsay, and still inadmissible.

Barnes got three years, probated to ten.

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Stricker v. State (Unpublished Memo): Robbery met "aggravated"  threshold because the victim was 65 or older. Tex. Penal Code Ann. §§ 29.02(a)(2), 29.03(a)(3)(A).  As a result, Stricker's appeal on grounds that he didn't use a deadly weapon is pointless.  Stricker's life sentence (he had priors) is affirmed.

I go to church with the victim.  She's a nice doctor's wife.  She doesn't look anything near 65.  She does look like trouble, though.  Why would I say such a thing?  It's what's on the inside that counts.

Mary G. was minding her own business, buying gas at the Brookshire's in the Azalea District here in Tyler.  Stricker comes up on her in broad daylight, threatens her with a knife, and tells her to hand over the keys to the new SUV.  She complies.  But only for a second. In the time it took Stricker to go around to the driver's side, Mary G. went from scared to mad.  Mel Gibson, Lethal Weapon, I'm-crazier-than-you-are mad.  She opened up the passenger's side door, stuck the pump in, and soaked him.  Stricker hauled out of there (that crazy lady might have a lighter!).  He didn't get far.  The vehicle had GPS.

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Thompson v. State (Unpublished Memo): As the United States Supreme Court was holding that the death penalty for child rape is cruel and unusual punishment, the Tyler court was deciding its own, much lower profile, cruel-and-unusual case.

Thompson pled guilty to aggravated robbery.  A trial on punishment resulted in a forty year sentence.   The statutory punishment range for aggravated robbery is 5 to 99 years, or life.  Although Thompson did not object on cruel-and-unusual grounds at trial, the Tyler court nonetheless considers the issue.  Since the punishment is within the statutory range, and in light of Rummel v. Estelle, the Tyler court upholds the sentence.

In 1980, in Rummel, the United States Supreme Court considered the habitual offender aka "three time loser" law.  The Supreme Court upheld a life sentence for the three successive crimes of fraudulent use of a credit card to obtain $80.00 worth of goods or services, passing a forged check in the amount of $28.36, and obtaining $120.75 by false pretenses.

But an interesting twist to the Kennedy v. Louisiana case is that it doesn't mention Rummel.  It's not because the Supreme Court's memory doesn't go back that far.  The opinion in Kennedy contains this bit:

[T]he Eighth Amendment’s protection against excessive or cruel and unusual punishments flows from the basic "precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense.” Weems v. United States, 217 U. S. 349, 367 (1910).

So what does it mean, if anything, that the Supreme Court reached all the way back to 1910, but didn't mention anything about a 1980 case?  Should Kennedy be put into a special category because it was a death penalty case?  Or does it signal that Rummel would be decided differently today?  And what of the broad "5 to life" statutory range?

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In the Guardianship of Humphries (Published Memo): Tex. Probate Code Section 655A trumps Tex. R. Civ. P. 141 when it comes the the assessment of attorney's fees, but does not trump the court's ability to award sanctions via Tex. R. Civ. P 215.3.

A nineteen year old, Luke, was incapacitated in an auto accident.  His father was appointed guardian.  Mother and maternal aunts challenge that in trial court probate proceeding. (The father and mother are divorced).  The attorney ad litem did a lot of work as a result of the mother's presence in the case.  That work included getting a temporary restraining order preventing the mother from seeing Luke or having inappropriate communications with the staff of the nursing home where Luke now lives.  Affidavits from the nursing home staff supported the entry of the order.  That temporary restraining order was later, by the mother's consent, converted into a temporary injunction.

The mother also had some "unstable" contact with the owner of a record retrieval company.  The mother's then-attorney had ordered some of Luke's medical records from a facility other than the nursing home.  The attorney ad litem is entitled to a copy of those records.  But the mother showed up at the office of the record retrieval company to pick up the originals before they could be copied. She made it very clear that she didn't want the attorney ad litem getting anything. The record retrieval company's owner felt "really afraid" and let the mother, and the records, walk out the door.  The attorney ad litem filed a motion to compel.  Eventually, the mother's attorney handed the records over as his last act -- just before his motion to withdraw was granted.

The attorney ad litem sought attorneys fees for his work done because of the mother's presence in the case, and as a sanction for putting him through the ringer to get the records.  The trial court went with the attorney ad litem on both fronts. 

But the trial court based the award of fees for work done on Tex. R. Civ. P. 141 instead of Tex. Prob. Code Section 665A.  The Tyler court says that Rule 141 "conflicts with the specific mandate" of Section 665A.  At first, the conflict is not readily apparent.  Section 665A says that fees are to be assessed as costs of court. Rule 141 provides that, for good cause, a trial court may assess the costs of court on a party.  So why can't the two be read together to support the award of fees against the mother?  Because 665A says that "if the proposed ward is unable to pay for the attorney's services, the county is responsible for the cost of those services."

My view: I have "strict constructionist" leanings, so I should be happy when a court takes a statute at its word.  But I'm not happy at the prospect of Luke or Smith County paying nearly $10,000 that, as the trial court found, should be paid by the mother.  If Luke has the money to pay now, he'd be better off saving it for future medical needs.  And Smith County has enough bills as it is.  Keep in mind that the total bill has now ballooned by virtue of this appeal.

I wonder how many situations like this come up every day in contested guardianship cases.  Without commenting on the mother's intentions here, let's just say I'm a cynic in general.  If the rules allow for an abusive party to have a "free bite at the apple" aka push the costs of their conduct onto someone else, they'll do it.  Rule 215.3 sanctions probably aren't the answer because the scope of sanctionable conduct is narrower than the broad "good cause" reach of Rule 141.  Same probably holds true for Tex. Civ. Prac. & Rem Code Chapter 10, which governs the signing of frivolous pleadings or motions.  Sounds like the Texas Legislature might need to tweak 665A so that it can be read along with Rule 141.  Opponents will contend that opens the door for judges to abuse Rule 141 to terrorize guardianship litigants.  I'm not as concerned about that as I am about the impact of this decision on those in the shoes of Luke and/or Smith County.  As a taxpayer, I can vote against a judge.  But what can I do about "unstable" litigants?

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Tom Ramey, who served as Chief Justice of the Twelfth Court of Appeals from 1989 to 2000, and President of the State Bar of Texas for the 1984-85 term, is one of the Texas Bar Foundation's 2008 honorees as an Outstanding Fifty-Year Lawyer.  I don't see the 2008 announcement yet on the TBF''s page.  But the announcement of the 2007 honorees has this description of the award:

The Outstanding Fifty-Year Lawyer Award was the first award established by the Texas Bar Foundation and is its most prestigious award. The award recognizes attorneys whose practices span fifty years or more, and who adhere to the highest principles and traditions of the legal profession and provide service to the public.

That says it.  A well-deserved congratulations to Chief Justice Ramey.  Coverage from the Tyler Morning Telegraph is here.

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Defense counsel for the third defendant in a child sex ring case in Tyler has filed a motion to transfer venue.  The first two defendants had been convicted in highly-publicized trials.  So nothing unusual yet in the motion to transfer venue.  In the motion, defense counsel alleges that news coverage has been biased against his client because the assistant DA set to try the case has been in relationships with local print and television reporters. Ah, there's the unusual.

Tex. R. Evid. 614, aka "the Rule" comes into play because all of the reporters in town know about the relationships and are potential witnesses.  Defense counsel invokes "the Rule" and asks that all of these reporters be excluded from the hearing on the motion to transfer venue. Which would mean that no one could cover the story.  Which is why the trial judge (the former Smith County DA) lifts the Rule as to the reporters, regardless of any knowledge they have of the assistant DA's personal relationships.

Print stories here and here.  TV coverage here.

As you might imagine, the Smith County legal community is debating the wisdom of defense counsel's approach.  I'll save my comments, if any, until I know more than what I read in the newspaper.

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Ingram v. State (Published): Ingram was convicted of burglary of a habitation.  Based on a prior burglary conviction, his punishment range was enhanced, and he was sentenced to thirty-six years plus a $4,000 fine.  Ingram contents that his conviction should be overturned because he didn't think the building was a habitation -- he thought it had been abandoned.  He requested a jury instruction on this "mistake of fact" but that request was denied by the trial court.

The trial court was right to deny the requested instruction.  The only "intent" part of a burglary of a habitation charge is entry with intent to steal.  Ingram had intent to steal.  The crime does not require intent to enter a habitation.  So whether Ingram thought this building was inhabited or not is irrelevant.  You break in with intent to steal, you take your chances on the legal status of the building.

In this case, though, it's easy to see how Ingram thought his thoughts did matter.  The State requested a jury charge that asked the jury to find that Ingram "intentionally or knowingly enter[ed] a habitation."  Even so, the Tyler court held that: "Because this erroneous requirement was not an element of the offense or necessary to support a conviction, the mere fact that it was included in the jury instructions did not expand the rights of Appellant such that he was entitled to a mistake of fact instruction."

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Elmakiss v. Elmakiss (Published Memo): Divorce case with good run-down of conservatorship and possession standards, as well as the hurdles for making a reimbursement claim.

Conservatorship: In a bench trial, the mother, Ruth, overcame the presumption in favor of joint managing conservatorship.  She was named the sole managing conservator of their now ten year old child.  The court-appointed psychologist appears to have played a big role in the trial court's decision and the Tyler court's affirmation.

The father, Yakov, was appointed the possessory conservator.  The Tyler court affirms.  The evidence showed that the parents had difficulty making joint decisions.  On the element of encouraging a positive relationship, the Tyler court found that: "Yakov turned down opportunities to spend more time with his child and was openly hostile to Ruth and any positive outreaches she made to him for the benefit of his relationship with [the child]."  Thomas Allen was the psychologist appointed by the trial court.  The Tyler court recounted Allen's testimony that: "[Yakov] was quick to become tearful and upset, a not uncommon way to displace guilt onto a child."  Allen recommended that Ruth be the sole managing conservator.  Based in part on Allen's testimony, the Tyler court found that there was no abuse of discretion in the trial court's decision.

Possession: In addition to going against the presumption in favor of joint managing conservatorship, the trial court went against the presumption in favor of the standard possession order.  By his own admission, most of Yakov's visits with the child consisted of watching movies on an in-car video system, either at the lake or at a Dairy Queen.  That doesn't address the child's developmental status or needs.  They didn't go to Yakov's house because, apparently, he didn't have one. Allen, the psychologist, testified that Yakov had hold him that he was living in a trailer parked at a friend's house.  The trailer did not have running water or a toilet.  What's more, Yakov asked the child to keep secrets from the mother, including the fact that a dog had bitten the child during one of the visits.  And Ruth's testimony counts too.  When assessing the trial court's decision, the Tyler court considered Ruth's testimony that Yakov was an "emotional bully" in his dealings with the child.  Taken together, the trial court didn't abuse its discretion by imposing visitation restrictions in excess of the standard possession order.

For the property and child support issues:

Continue Reading...

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Osborn v. State (Unpublished Memo): A jury had the option to give Osborn a life sentence.  Since Osborn had one to four grams of cocaine within 1,000 feet of a middle school, the jury felt that a life sentence was the right call.  But the jury shouldn't have had that option.  By statute, the punishment range is seven to twenty years.  Osborn has an "absolute and nonwaivable" right to a sentence within the range set by the Texas Legislature.  Any sentence outside of that range is void.  The conviction stands, but the case is remanded for re-sentencing.

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In re Frost (Published Memo): The Tyler court reinstates a trial attorney who had been disqualified by the trial court.  In a heated divorce case, the husband thought the wife was lying about documents that she said had been "destroyed" before the divorce was filed.  The husband was sure those documents still existed, and were in the marital residence his wife was now occupying.  There were no temporary orders concerning the residence.  Husband and his attorney considered that house fair game.  So, when the wife was out of town, the husband, his attorney and his attorney's assistant went in. They videotaped and photographed as they went.  They found "destroyed" documents.

The husband moved for sanctions over the wife's lying.  In response, the wife moved to disqualify the husband's attorney.  The wife contended that the attorney's presence in the house made him a "material witness."  The trial court agreed and disqualified.  The husband challenged that ruling via mandamus.

Continue Reading...

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