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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In the best interest and protection of B.L. (Published Memo): Another case where a defendant declared incompetent to stand trial refuses the medication that could render him competent.  Here, the doctor for the State filed an application to force B.L. to take his meds.  But the Tyler court has already held that a bare application isn't evidence.  So B.L. wins this appeal.

This is the same result, and the same reasoning, of the earlier Tyler case of In re E.G.  As noted in that post, the Rusk State Hospital is in the jurisdiction of the Tyler court.  As you might imagine, there are constitutional issues raised by forcing someone to take medications.  If I had to place bets on what sort of Tyler case might eventually end up in the Supreme Court of the United States, this is where I'd go "all in."

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On July 25th, the Supreme Court of Texas issued five identical decisions indicating that it would hold off on deciding the constitutionality of a provision of the Family Code dealing with appeals from terminations of parental rights.  That's probably a hint to the Texas Legislature to address the issue in the next session.  All well and good.  But what should trial judges do while waiting for a new statute?

Well, two of today's twenty-two decisions from the Texas Supreme Court deal with appeals from terminations of parental rights.  One case, In the interest of G.B., et al., reiterates the high court's position that it will hold off on deciding the constitutional issues.  The other, In the interest of M.N., a child, offers some help for trial judges in these in-between times.

Under the Family Code, terminated parents have fifteen days to file their statement of appellate issues.  But is that fifteen days a hard-and-fast deadline, or may a trial court grant extensions?  Today, the Supreme Court of Texas said that trial courts have the authority to extend the fifteen day deadline.

But there was a lone dissent.  Rather than butcher Justice Willett's brief words, here they are

For better or for worse, the Legislature in Family Code section 263.405(b) set a firm fifteen-day deadline for filing a statement of points for appeal. Reasonable people can dispute the efficacy of this hard-and-fast deadline, but few can dispute its clarity.

I fully understand the Court’s desire for leniency in enlarging the fifteen-day deadline beyond the statute’s terms. Appealing the termination of one’s parental rights is serious business, and having such rights vanish because of a counsel’s (or pro se litigant’s) mis-calendaring is nigh unfathomable. On the other hand, every day of childhood is irreplaceable, and society benefits when children are placed in safe, secure and loving homes as quickly as possible.

The Legislature wanted these cases to proceed with alacrity, reducing post-judgment delay by barring appellate consideration of tardy points. I would take lawmakers at their word: fifteen days means fifteen days. Squeezing out delay, however, does not permit squeezing out due process. It is one task to honor a fast-tracking statute’s unambiguous text and refuse to judicially rewrite it under the guise of construction. It is quite another to examine whether that text, however plain, unconstitutionally restricts due process or other guarantees. Terminating parental rights cannot warrant terminating constitutional rights.

I would (1) hold that court-made rules of procedure do not trump the Family Code’s fifteen-day deadline and then, assuming preservation, (2) confront head-on whether this statutory deadline violates Durham’s due-process rights or any other constitutional provision.  Because the Court does neither, I respectfully dissent.

 

In a footnote, Justice Willett notes that the Supreme Court of Texas has granted review of a petition squarely presenting the constitutional questions.  I still stand by my earlier prediction that the issue won't be decided until the Legislature takes another look at this.  But I could be wrong.  The 81st Regular Session of the Texas Legislature convenes on January 13th, 2009.  If there aren't any good bills in the works on day one, Justice Willett may have an easy time of bringing other Justices over to his way of thinking.

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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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Thomas v. Bobby D. Associates (Published Memo): $49,000 in fees for a $7,000 recovery is excessive.  The Tyler court orders a $24,000 remittitur.

This is a collections case.  Thomas agreed to buy six tracts of land in Van Zandt County.  He made the payments for a while, but couldn't keep them up.  Bobby D repossessed the tracts but still sued for the full amount on the notes, plus interest.  In total, Bobby D sought about $80,000 in damages.  The jury only awarded $7,000.  That's because the trial court didn't go for the Bobby D's double-dipping.  The trial court instructed the jury to base their award on the amount due on the notes less the current fair market value of the repossessed tracts.

In light of the award, the Tyler court couldn't stomach the big fee award.  Bobby D had asked for too much, had let the case linger on the docket for seven years, and had multiple attorneys get up to speed on the case only to hand it off to someone else.  The Tyler court makes Bobby D an offer: agree to a $24,000 reduction in the fee award, or have the fees wiped out and sent back to the trial court for a do-over.

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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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Morales v. Dougherty and Mabe, dba Top Gun Trucking (Published Memo): Here's one for the personal injury practitioners.  Truck wreck case upholding the submission of a sudden emergency instruction and the admission of testimony about the plaintiff's insurance coverage.

Here's the crash scenario, with letters representing vehicles.

A    B    C    Hill    D

The plaintiff, A, was waiting to make a left turn on a rural highway.  B, and then C came up behind her.  D then topped the hill.  D couldn't stop in time, so he went off road on the right around C.  But D then lost control and veered back onto the road, into A.  C, another trucker, testified that, in his opinion, D did all that could be done and that A was dawdling.

That fact pattern supports a sudden emergency instruction for D.  Even without D having plead for such an instruction.  Sudden emergency is not an affirmative defense, so D could simply request the instruction during the charge conference.

The Tyler court holds that the plaintiff opened the door to testimony about her insurance coverage.  She asked for thousands of dollars for medical procedures.  She said that she had not gotten the procedures because she couldn't pay for them.  But she had insurance.  The trial court and the Tyler court say that the plaintiff's plea of poverty opened the door to her insurance coverage.

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In the interest of A.T.S. and M.D.S. (Published Memo): Termination of parental rights with another constitutional challenge to  the Family Code's indigent parent provisions. 

The Tyler court holds that the Family Code Section 263.405(i) requirement of statements of appellate issues does not prevent parties from appealing matters that come up after the statements are filed.  In this case, it's the trial court's findings of fact and conclusions of law that were entered after the statements were filed.

The terminated parents had alleged that the Family Code was unconstitutional to the extent that it required them to see into the future.  It doesn't, so it isn't.

The parents got to present their appeal.  But it was denied.  The Tyler court goes to great lengths to set out the drug/un-under employment/non-compliance with CPS "family plan" evidence that supports the trial court's decision to terminate parental rights.

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Chapman v. TDCJ-ID (Published Memo): An inmate on a work detail fell from a ladder.  He sues, alleging improper supervision, and a defect in the ladder (lack of non-slip rubber feet).  The suit is dismissed as frivolous under Texas Civil Practice and Remedies Code Chapter 14.

Following the Chapter 14 standards the trial court found that the claim's "realistic chance of ultimate success is slight."

The Tyler court reviews that decision under an abuse of discretion standard.  The State of Texas is immune from suit unless it has given permission to sue.  Permission to sue has been given for the "use of tangible personal property."  But no such permission has been given for cases of mixed use and nonuse.  Chapman's complaint about the ladder and being left alone is a mixed claim.  The claim was therefore frivolous.

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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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Webb v. State (Unpublished Memo): Webb complains that the trial court didn't even consider her application for probation of a felony marijuana possession charge.  If Webb's charge is true, the trial judge deprived her of her right to due process under the Constitutions of the United States and the State of Texas.

For starters, Webb waived this complaint by not presenting it to the trial court.  But the Tyler court doesn't leave it at that.  The Tyler court looks at the merits of Webb's charge, and finds it without merit.  Unfortunately for Webb, the trial judge had read her application for probation. 

There was something in the application that galled the judge.  Webb had been convicted at a bench trial.  But her application said she was a good candidate for probation because "I never did anything. I've never been on nothing."  Having read that, the trial judge declared:

Yeah[,] you did something, it's not like you did nothing, you violated the law of this state. ... She comes and violates the law and thinks this judge is going to reward it? It ain't going to be. No. Probation is not appropriate for this defendant under these circumstances.

When Webb started crying, the judge went on:

Late for tears. I could shed some tears too, tears for those who were going to get that marijuana transferred into this county. Yeah, I get tears.

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Hurst v. State (Unpublished Memo): A woman let one of her teenaged daughter's friends sit on the front "ranch hand" bumper of a pickup truck as they eased along a country road.  The woman got distracted by another kid.  When she looked back to the front of the truck, the girl wasn't there any more.  So the woman jerked the truck to the ditch on the side of the road and stopped .  Then, instead of getting out of the truck and walking around, she pulled forward out of the ditch, over the teenage girl, killing her.

The woman pled guilty to manslaughter and endangering a child.  There was a trial on sentencing.  She got seven years probation on the manslaughter and two years in prison on the child endangerment (the max for that charge).

Double Jeopardy: The woman contends that she was tried twice for the same crime - that the manslaughter and child endangerment charges were based on the same conduct.  the Tyler court denies this argument.  Both charges required something more than the other.  Death is required for manslaughter but not for child endangerment.  The victim's age is central to child endangerment but irrelevant to manslaughter.

Hearsay: The child who had (predictably) distracted the woman was her own six year old son.  The woman complains about the admission of his statement that: "We didn't mean to kill Krissi."  But the State didn't offer that statement to prove the literal truth of what the boy said.  Acceptance of responsibility is a legitimate factor in assessing a sentence, and the State was within its rights to present evidence that the woman would put this weight on her own boy rather than carry it herself.

The bereaved mother's testimony: When the mother of the victim came to the hospital, her anguish was compounded because "they" tried to put her in the same waiting room she had been in five years earlier when her husband died.  There was no evidence that "they" included the defendant, so the Tyler court holds that this testimony would not have impermissibly riled the jury up against the defendant.  Conviction affirmed.

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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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Hohn v. Hohn (Published): Divorce dispute over what counts as the present value of the husband's interest in a partnership, and what counts as the husband's future earnings.  As Robin Williams once quipped: "Ah, yes, divorce ... from the Latin, meaning to rip out a man's genitals through his wallet."

Lest anyone accuse me of coarsening the public discourse with that observation, my defense is that I read it in the Economist.

As the Economist notes, some are expecting a rush to the divorce courts as the spouses of high earners try to get their divorce based on the earnings history of their spouses, before the reality of the sinking markets shows up in the form of paltry Christmas bonuses, etc.  For the Gotham big-shot attorneys representing the titans of Wall Street, this case out of little old Tyler might prove helpful.

The husband in this case is a partner at one of the firms that represented the State of Texas in the tobacco litigation.  The attorney and the firm as a whole are very successful.  They've got another big case in the works.  And that's what the fight is over.  The wife and her expert consider the huge fees that the firm might earn as good as in the bank, making the husband's current stake in the firm (which is community property) all-the-more valuable.  The Tyler court disagrees. 

Before getting to the ultimate conclusion, the Tyler court notes that the firm's partnership agreement provisions about what the husband would get if he were to withdraw from the firm do not control the court's valuation of his present interest in the firm.  Also, the trial court did not, in general, abuse its discretion in allowing the wife's expert to testify.  The expert had testified to the value of interests in professional firms before (including a prior divorce involving the same firm).  His choice of the income method of valuation over an asset-based method was a choice favored by other experts.

But the wife's expert included potential fees the firm might earn on the cases "in the works" in calculating the husband's current stake.  In the words of the Tyler court: "Revenue from these cases is no more than an expectancy interest and any money to be received constitutes future earnings to which [the wife] is not entitled."  The case is remanded for a re-division of the marital estate.

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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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Floyd v. State (Unpublished Memo): There was no factual basis to support a Tex. Code Crim. Proc. Ann. art. 38.23(a) jury instruction, thus a failure to request the instruction cannot amount to ineffective assistance of counsel.

Floyd believes that there was no basis for the traffic stop that resulted in a search that turned up cocaine.  The traffic stop was over an unlit license plate.  Those things are supposed to be lit so that the plate can be read from fifty feet away.  The officer and her dash cam say Floyd's plate wasn't properly lit.  Floyd's attorney cross-examined them on this point, but didn't produce any conflicting testimony.  And there's the rub.

Under Art. 38.23(a), a defendant is entitled to an instruction to the jury that they can disregard evidence if there was a fact question over whether it was obtained improperly (e.g., unlit plate = proper stop, or lit plate = traffic stop without probable cause) and the jury resolves that fact question against the State.

But here, there was no "unlit or lit" fact question.  There was only the officer's testimony.  Cross-examination questions, however pointedly worded and emphatically stated, do not raise a fact issue.

With no fact issue, no basis for the jury instruction.  No basis for the jury instruction, no error by the attorney in "failing" to request it.

Side note: the Tyler court could have taken the easy way out and relied on the Strickland presumptions.  Instead, they grabbed the issue head-on and said that the trial counsel's work was actually effective.

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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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Crocker v. State (Published): Since 2005, DWIs from as far back as records can be found can be used to enhance the sentence of a new DWI.  That's a change.  It used to be that DWI convictions more than ten years old couldn't be used.  Like it or not, the change is constitutional.  Someone needs to give a heads up to folks currently having a mid-life crisis who are figuring that all of that "college stuff" in the 1970's, 80's or 90's is water under the bridge.

Crocker had 1992 and 1993 convictions and new, 2006 offense.  He argued that the ten years had run on his old counts as of 2003, and (under the ex post facto doctrine) the 2005 change in the law should not revive them.  The infinite look-back should only apply to offenses committed in 2005 and beyond, after the infinte look-back took effect.

Crocker's argument is rejected.  True, the constitutions of both the United States and the State of Texas prohibit ex post facto laws (i.e., punishing someone for acts that only became criminal because of a law passed after the fact). But Crocker is in trouble because of his 2006 actions; the State is not coming back and trying to give him stiffer sentences for the 1992 and 1993 offenses.

Crocker also argues that the old law, the ten year limit, was a promise that he was entitled to rely on.  He makes an analogy to a deferred adjudication case, Scott.  In Scott, the defendant plead guilty to a sex crime, was sentenced to deferred adjudication, and successfully completed his sentence.  At that time, the law provided that successful completion of deferred adjudication would prevent the offense from ever being used to enhance a sentence for a future crime.  Sure enough, the Texas Legislature decided to change the law to allow deferred adjudications to enhance future sentences.  And, (also sure enough) Scott committed another crime.  But the Court of Criminal Appeals held that Scott was entitled to rely on the law at the time he completed his deferred adjudication.  So his prior offense could not be used to enhance the sentence for his current one.

Unfortunately for Crocker, the analogy doesn't hold.  The limitation on the future use of Scott's deferred adjudication was a clear and definite part of the deal for that offense.  The ten year DWI look-back window was not a clear and definite limitation on his 1992 and 1993 sentences.  Instead, it was a conditional pledge by the Legislature that could be changed.  In the words of the Tyler court :

"the former ten year time limitation on the use of DWI convictions 'was not an explicit guarantee that those convictions could not be used in the future, but only a restriction on what prior convictions could be used to enhance an offense at that time.'" (quoting a Houston case, and citing cases from Austin and San Antonio that reached the same conclusion on this issue.)

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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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Wells et al. v. Dotson (Published): A simple fact pattern results in a decision of "affirm in part, reverse and render in part, reverse and remand in part, and dismiss for want of jurisdiction in part."

Put this one in your files for the proposition that ratification is not a defense to breach of fiduciary duty, breach of contract, fraud, statutory fraud, or unjust enrichment.  Also, note that conduct surrounding and leading up to a contract is logically related to the contract and part of the same transaction for purposes of Tex. Civ. Prac. & Rem. Code Section 16.069.

Continue Reading...

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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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The only case on July 17th's Supreme Court  of Texas Order List is a denial of mandamus that leaves open some questions on a trial court's ability to grant "partial" new trials.  It's In re Mary Jane Barton, a case out of the 7th Court of Appeals in Amarillo.  But there's an East Texas connection. 

A couple got divorced in Potter County, Texas (Amarillo).  Apparently, that's where they lived during their marriage.  The divorce decree made the husband and wife joint managing conservators of their child.  The wife was given the authority to pick the child's primary residence.  But that authority was limited to the counties in the Amarillo area so long as the husband lived there.

This was a problem for the wife.  While the divorce was pending, she and the child had moved to East Texas.  Specifically, Gilmer, Upshur County, Texas. (Home of the Yamboree)  The opinion doesn't say, but I'd bet that's where the wife's family is from.  In the month after the divorce decree was entered, she didn't exactly go rushing back to Amarillo to find a job and a house.  Which is to say: She stayed in Gilmer.

Before the Potter County trial court's jurisdiction expired, the husband moved for, and got, a partial new trial of the divorce on the limited issue of which parent would get to establish the primary residence of the child.  The wife objected, and eventually filed a mandamus proceeding, on grounds that the trial court couldn't reopen that issue without also reopening the issue of the geographic restrictions on that right.  The opinion doesn't say what the wife wanted to do on the geographic issue.  Maybe she wanted the husband to be pinned down to a particular Amarillo area location.  Or maybe she wanted a complete role reversal, as in: "OK, hubby, you get to pick the primary residence, but it has to be in Upshur County."

The Amarillo court notes that the wife was tardy in bringing her mandamus action.  That alone would justify their denial of her mandamus.  But the Amarillo court also reaches the merits, stating that the trial court did not abuse its discretion by granting a new trial just on who was going to pick the child's residence without reopening any geographic limitations on where that pick could be made.

The Supreme Court of Texas, without issuing an opinion, denied the wife's attempt to reverse the Amarillo court.  So the trial court's judgment stands.

The issue of partial new trials has vexed appellate courts.  There's a Rule of Appellate Procedure on the subject, but the rule is more of a starting point than a finish line.  Tex. R. App. P. 44.1(b) provides that:

If the error affects part of, but not all, the matter in controversy and that part is separable without unfairness to the parties, the judgment must be reversed, and a new trial ordered only as to the part affected by the error. 

To me, that's basically a statement of "use your common sense."  Which isn't much help because one person's common sense is another's lunacy.  Rule 44.1(b) provides one specific example:

The court may not order a separate trial solely on unliquidated damages if liability is contested.

That's very helpful.  But if you sense the potential for a partial new trial in your case, get ready for some research and some briefing, because the rest of the examples are in the caselaw like In re Barton.

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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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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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Mrs. & Mrs. Hill v. the Jarvis Family (Published Memo): Treble damages awarded for wrongful sale of timber by cotenants involved in a partition suit.  Good discussion of the two-stage partition suit process.  Also worth remembering that the Natural Resources Code provision allowing for treble damages for wrongful timber harvesting applies even among cotenants. Tex. Nat'l Res. Code Ann. § 151.051(a). 

Here the Hills owned 37% of a Smith County tract, with the Jarvis family owning 63%.  The trial court had already entered an order confirming those percentages, and settling all claims for contribution (such as for one side paying for more of their share of property taxes up to the date of the partition judgment).  Still pending was the second stage: the appointment of commissioners and a surveyor to actually divide the property. It was at this point that Mr. Hill had all of the timber cut and sold.  The Jarvis family gets a judgment against Mr. Hill, but their judgment against the wife was vacated because there was no evidence she participated in her husband's actions.

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Hamilton v. Thompson, et al. (Published Memo): Prisoner's civil rights suits against eleven TDCJ-ID employees is dismissed without a hearing (or rehearing) for failure to comply with Tex. Civ. Prac. & Rem. Code Chapter 14.  There have been several decisions by the Tyler court this year on this provision.  This time, the prisoner listed his prior pro se lawsuits, as required, but did not provide the required summaries of what he was claiming in those suits and their outcomes.

The prisoner also objects on equal protection grounds to the portion of the dismissal order that assessed court costs against him.  He hadn't raised that issue before the trial court, so the Tyler court rules that it was waived.  Even so, the Tyler court goes on to say that the equal protection argument fails because the prisoner made no showing of disparate treatment.

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In the Interest of JM, JJ, JJ & JJ (Published Memo): Parent's appeal of termination of parental rights as to four children is denied because, though the terminated parent filed a motion for new trial, the terminated parent did not file a required Tex. Fam. Code Ann. § 263.405(b) statement of issues for appeal.  It's an odd case to be published.  I guess publication is warranted as a word to the wise on two fronts. First, the Tyler court will enforce the statute. Second, the Tyler court will entertain arguments about the constitutionality of the statute, but only if you're prepared.  Constitutional challenges are big legal fish, so don't show up late with a Zebco.

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Killgo v. State (Unpublished Memo): Killgo failed to defeat all of the probation revocation findings made by the trial court. so the Tyler court affirms.  Killgo's ten year probation for aggravated sexual assault of a child was revoked and turned into a fifty year prison term. 

Killgo says that six of the eight terms-of-probation violations the trial court found dealt with a failure to pay money (a fine associated with his sentence, and other undisclosed financial obligations that were made conditions of his community supervision).  He says that the trial court's conclusion that he was "able" to pay is not supported by the evidence.  He says the evidence shows he was broke.  The Tyler court says: "What about the other two violations?"  Or, more precisely:

In cases where the trial court revokes probation based upon findings that a defendant violated more than one condition of probation, such a revocation does not constitute an abuse of discretion where any single finding of a violation is held to be valid.

Killgo hadn't submitted to a required polygraph examination (the subject(s) of that examination are not stated).  In addition Killgo hadn't showed up for community service duty.  So the Tyler court affirms the revocation of probation.

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