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 R.M. (Published Memo): Civil commitment case under Tex. Health & Safety Code Ann. § 574.034(a) (Vernon 2003).   R.M.  threatened his brother.  When the police came, he threatened them, too.  He was taken into custody and given a psychiatric evaluation.  The doctor then sought to have R.M. sent to Rusk State Hospital.

R.M. had some interesting things to say to the doctor that night.  Turns out R.M.'s a Texas Ranger, and Governor Bush named him superintendent of the Rusk State Hospital.  At a hearing the next morning, the doctor testified to these statements, and R.M.'s erratic and aggressive behavior.

That's evidence supporting the application for a 90 day commitment.

R.M. points out that, at the hearing, he admitted that he was bipolar.  He promised to take his meds.  He denied the bit about running the assylum.  He explained that his claims of being a Ranger, while admittedly misleading, were truthful (R.M. is a graduate of Kilgore College, and in that sense, is a Ranger).  All-in-all, R.M. tried to talk his way out of going to Rusk State Hospital.  That's actually a sensible thing to do.

But the trial court had ruled against him.  R.M. would have liked a "do-over" before in the Tyler court.  He didn't get it.  Because of the standards of review on his legal and factual sufficiency points, the Tyler court just looks to see if there was evidence to support the trial court's decision.  In the words of the opinion:

The trial court was entitled to disbelieve R.M.'s testimony and disregard evidence contrary to the State's position. See id. at 27. Further, R.M.'s testimony does not negate the evidence that he is unable to have his needs met in the community. In light of the entire record, we cannot say that the trial court could not reasonably form a firm belief or conviction that R.M. is distressed and that his ability to function has deteriorated, thereby requiring further inpatient mental health services.

R.M. may not get to run the place, but he's going there.

P.S., an anonymous poster once pointed out that all civil decisions are published.  True. But I didn't want to get into a discussion of the Texas Rules of Appellate Procedure and the difference between the publication standards for civil and criminal cases.  I figured most trial practitioners and the general public would find the blog more accessible if I used a common nomenclature. Apologies to my non-lawyer readers.  My blog is listed on the new website for the Appellate Section of the State Bar of Texas, and there are all sorts of fellow appellate geeks who may be looking at TylerAppeals for the first time.

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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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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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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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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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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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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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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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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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In re ADM Investor Services, Inc. (Published): Forum selection clause waived, at least according the the majority.  Mandamus relief denied.  The dissent would find no waiver, and would have granted mandamus.  This is a hot topic in Austin, so either way, there's a good chance that the Tyler court won't have the last word.

Prescott signed an agreement with Texas Trading (an agent for ADM)  for ADM to trade commodities for Prescott on the Chicago Board of Trade.  Prescott's account went 50 grand into the red.  ADM got that out of the hide of Dawson, the owner of Texas Trading. Dawson then successfully sued Prescott for that amount.

Prescott then sued Texas Trading and ADM for being lousy traders.  By virtue of the agreement that Prescott had signed, both Texas Trading and ADM could have asserted a forum selection clause that would have sent the matter to Illinois.  But instead Texas Trading just asked that venue to be transferred from one Texas county Rains to another (Hopkins).  ADM sat on its hands while Texas Trading got its venue transfer.

Generally speaking "[e]nforcement of forum selection clauses is mandatory unless the party opposing enforcement clearly shows that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching."  Of course, "unreasonable and unjust" could mean a lot of things.  It's a matter of sifting through prior cases to figure out what those terms really mean. In particular, arbitration cases, because the Texas Supreme Court has held that the standards for waiver of arbitration clauses are "analogous" to the standards for forum selection clauses.  See this earlier post on an interesting arbitration decision by the Tyler court.

The majority all but accuses ADM of teaming up with Texas Trading to force Prescott into litigating in two forums.  That's dirty dealing that waives the forum selection clause.

The dissent basically says: "Like it or not, the law on forum selection lets ADM do exactly that."  The dissent doesn't really take issue with the majority's statement of the law, just its application to these facts.  The dissent points to Supreme Court of Texas cases where parties let litigation roll along far longer than ADM did here without waiving the right to compel arbitration.

If memory serves, this is only the second Tyler case this year with a dissent. The first one is here.

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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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Brown v. State (Unpublished Memo): Thirteen year old steps into an argument between his mother and her boyfriend.  The boyfriend hits the young man in the head with a boot (it appears that the boot was wielded by hand).  The (now-ex) boyfriend is convicted of injury to a child.  He appeals on grounds that there's insufficient evidence to support the conviction.

On the one hand, there's: the testimony of the kid, the testimony of his mother, the testimony of an officer who saw the freshly-swollen knot on the kid's head, and the fact that the boyfriend had boots on him.

On the other hand, the boyfriend says he didn't do it.

Outcome: The Tyler court gives the boyfriend's appeal a "Boot to the Head!" (my reference, not the court's, to a late-80's comedy bit by the Frantics.)  The album art depicts the application of the boot to the the boyfriend, not the kid. 

Hate to see kids having to grow up in a heartbeat.  Kudos to the kid for being the biggest man in the room.

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In re City National Bank et al (Published): Venue case out of Rusk County.  Wyatt Norman has a car business on some land in Gregg County.  He got behind on his note, which was secured by the land.  The bank sent out notice that foreclosure was imminent.  Norman raced to the Rusk County courthouse to stop the foreclosure, suing City National Bank, a loan officer, and the loan officer's assistant.  The bank and its personnel bring a mandamus action to get venue transferred to Gregg County pursuant to Tex. Civ. Prac. & Rem. Code Section 15.011 (mandatory venue in county where land is located in suits over land).

Norman's basis for venue in Rusk County is that the assistant to the bank's lending officer resides in Rusk County.  Norman makes a litany of allegations against the bank, the loan officer and the assistant.  Norman asserts that all of these allegations transform the fundamental nature of the suit.  In his view, it is no longer a suit about land.

The Tyler court disagrees.  In the words of the Tyler court, the application of the mandatory venue statute is determined by "the ultimate or dominant purpose of a suit ...not [by] how the cause of action is described by the parties."  The whole purpose of Norman's allegations is to keep the bank from foreclosing on the land in Gregg County.  It's about the land.  The suit belongs in Gregg County.

Juliet.
'Tis but thy name that is my enemy;--
Thou art thyself, though not a Montague.
What's Montague? It is nor hand, nor foot,
Nor arm, nor face, nor any other part
Belonging to a man. O, be some other name!
What's in a name? that which we call a rose
By any other name would smell as sweet;
So Romeo would, were he not Romeo call'd,
Retain that dear perfection which he owes
Without that title:--Romeo, doff thy name;
And for that name, which is no part of thee,
Take all myself.

Romeo.
I take thee at thy word:
Call me but love, and I'll be new baptiz'd;
Henceforth I never will be Romeo.

Romeo and Juliet, Act II, Scene 2.

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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:

Property: The trial court awarded Ruth a greater portion of the proceeds from the sale of the marital residence as a reimbursement for her use of separate funds for the benefit of the community. Ruth's accountant traced $20,619.52 from the sale of her separate property in Arizona to the payment of $6,983.26 of community credit card bills. (No mention is made of what became of the remainder of the proceeds from the Arizona sale). Based on that, the trial court granted Ruth's reimbursement claims. The Tyler court reversed. What if those community credit cards had been used to pay for the living expenses of the family? That would not be reimbursable. Ruth had the burden of proof and she failed to show how the credit cards had been used. Since the division of the proceeds from the sale marital residence was linked to the reimbursement claim, that issue was also reversed and remanded.

Interestingly, Ruth tried to argue that Yakov had waived any complaints about reimbursement because he didn't object at trial.  Yakov, however, appealed on grounds of insufficient evidence, a ground that can be raised for the first time on appeal.  Even in the hybrid setting of an appeal from a family law bench trial, where the abuse of discretion standard of review is blended with traditional factual and legal sufficiency.

Speaking of standards of review, the remainder of the property allocation was affirmed, in my view, based on that standard of review.  Yakov contended that it was grossly disproportionate, and wasn't anywhere close to "just and right."  The Tyler court didn't discuss whether the evidence supported an division slanted in Ruth's favor.  That's because it wasn't slanted.  Yakov didn't put on any evidence at the trial level to show that the division was slanted.  So, while the division was not exactly even in "monetary terms," the Tyler court found that it was not "inequitable."  Interestingly, Ruth was awarded a judgment against Yakov for $26,664.77 in attorney and expert fees.  Yakov's lack of evidence at trial coupled with standard "abuse of discretion" review equals property division affirmed.

Support.  The trial court ordered Yakov to pay child support based on a monthly income of $1,800.  But that was a number that Ruth gave, and she didn't put on any evidence to back it up.  On this score, the trial court did abuse its discretion because it varied from the statutory child support guidelines without making the required findings of fact.  The child support issue was remanded as well.

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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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Wesson v. State (Unpublished Opinion): Bribery conviction affirmed. Wesson, the City of Palestine’s dual capacity tax assessor-collector/city water utility supervisor got $1,000 from a citizen in exchange for issuing him a $7,183.71 refund for “billing errors” on his water bill. Whether or not there was a billing error, the citizen shouldn’t have gotten the refund money because he owed $14,465.86 in back taxes to the assessor-collector’s office.

Jury argument: Wesson produced an old water bill on the eve of trial (it had to do with whether she had used part of the $1,000 to pay her own water bill). The prosecutor responded by asking the jury to consider why Wesson hadn’t produced the water bill sooner, and why she hadn’t produced any other documents. Wesson said the prosecutor’s argument was an end-around her Fifth Amendment privilege against self-incrimination.

It wasn’t. Granted, prosecutors can’t make a plea for the jury to consider a defendant’s failure to testify. But when documents are added to the mix, things aren’t as cut-and-dried. The court looks at the argument as a whole to see if the prosecutor “manifestly intended” such a plea, or (prosecutor’s intent aside) the jury would “necessarily and naturally” hear such a plea in the prosecutor’s words.

Under that standard, it appears that a tie goes to the prosecution – a “mixed” statement that could refer to the failure to testify or to the failure to produce documents does not “necessarily” refer to the failure to testify. That’s a bit of editorializing on my part, though. There was no mixed statement here. The Tyler court found that there was nothing in what the prosecution said that went to the failure to testify. The prosecutor’s statements were squarely directed to the documents. Hence there was no violation of the privilege against self incrimination.

The prosecutor also used the closing to tell a story about his wife’s experiences as a cashier. The gist of those experiences being that there were double-checks. Everyone had to answer to someone else, and if your drawer didn’t add up at the end of the day, you’d get fired. The Tyler court considered that argument a valid response to argument by Wesson. Wesson argued that the cash drawer added up in a way that was inconsistent with the State’s theory. The prosecutor’s argument made the point that Wesson had unchecked access to the drawer and could have manipulated the numbers.

In addition to the jury argument points, one of Wesson’s main points appears to be that she could not be guilty of bribery because the citizen didn’t get a benefit. Wesson said that the citizen truly had been overbilled (and as water supervisor, she got to determine these things), so there was no “benefit” involved in giving the man money that was really his. But it wasn’t his. If any refund was owed to him, it should have gone to pay down his back taxes.

Wesson also appealed over: 1. the evidence not matching the indictment (the indictment used the citizen’s full name and his nickname, but he was only identified by the nickname at trial); 2. The expert testimony of the city auditor and an assistant to the city manager; 3. The exclusion of records she offered to impeach the city auditor; 4. the introduction of her allegedly unrelated dealings with the citizen, and 5. An accumulation of errors that, taken together, should justify reversal. The Tyler court rejected all of these arguments.

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Reggie v. State (Unpublished Memo): It's a state jail felony to use a vehicle to evade arrest.  Texas Penal Code § 38.04(b).  Under Texas Penal Code § 38.04(b)(2)(A), it's a third degree felony to use a vehicle to evade arrest if you've got a prior conviction "under this section."  Reggie had a prior conviction for evading arrest, but that one wasn't in a vehicle.  So does "under this section" mean any evading arrest conviction, or is it limited to a prior vehicular evading arrest?

Any evading arrest will do.  Section 38.04 is entitled "Evading Arrest or Detention."  The provision concerning the use of a vehicle is a subsection.

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Thompson v. Vincent, et al. (Published Memo): Thompson failed to preserve error concerning the sale of 43.07 acres in Anderson County, Texas. The sale was ordered as part of a probate proceeding. The land was ordered to be sold, with the proceeds to be divided among several heirs.

On appeal, all of Thompson's issues went to the underlying probate proceeding -- he contested the validity of the will, he challenged the appointment of the administrator, etc. 

But, he did not directly challenge the order of sale. As a result, the order stands on appeal.

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Schaefer v. State (Unpublished Memo): It’s pretty clear that husband and wife had a rocky relationship. But was there an assault as alleged in the information? When the wife recants the assault allegation, the husband claims that all other testimony factually insufficient to support a conviction.  But between the wife’s report to peace officers (admissible) and the testimony of wife’s friend (who spoke to wife shortly after the event) there’s enough evidence to overcome a sufficiency of the evidence challenge.

As alluded to in the title of this post, the testimony here was all over the board.  Depending on who the jury believed, it's entirely possible that there was no assault.   But the jury chose to believe the testimony that pointed to assault.  The Tyler court gave the jury's determination "due deference."

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Hickman v. State (Unpublished Memo): The range for sexual assault of a child is two to twenty years with up to a $10,000 fine.  The sentence here was fifteen years and a $5,000 fine.  That sentence can't be reviewed for factual sufficiency.  Since Hickman didn't challenge the sentence as being cruel and unusual, factual sufficiency was the only ground for appeal.  That ground was rejected.

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Nixon v. State (Unpublished Memo): Stepmother beat a toddler. Did not appeal on grounds that she didn’t do it. Instead appealed on grounds that the beating didn’t inflict serious bodily injury. Not much sympathy for that argument.

Thankfully, the child had no disfigurement or permanent loss of organ or limb function.  Of course, such injuries would have qualified as serious.

So, in this case, the remaining way for the State to prove a "serious" injury was to show that the beating resulted in “a substantial risk of death.” Tex. Penal Code § 1.07(a)(46).  That risk is judged based on the injury as inflicted, i.e., on what would have happened if the victim didn’t get medical care. A doctor testified that the child’s breathing was suppressed by bleeding on the brain.  The doctor also testified that the child could have died but for five days of hospital treatment.

Just a guess: In the guilt/innocence phase, the stepmother tried to introduce a journal she had kept concerning the child, in hopes of showing that she was really a diligent and loving parent. The State objected on hearsay grounds. The trial judge sustained. The stepmother did not make an offer of proof. Consequently the issue was waived on appeal. I suspect Stepmother’s appellate counsel raised the point anyway, in the vain hope the journal would his client some sympathy.

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Suell v. State (Unpublished Memo): Entrapment, an affirmative defense, is waived when the defendant doesn’t ask for an entrapment instruction in the jury charge.  Suell raised the issue of entrapment for the first time in his appeal.  By then he had waived the issue.  That's all there is to this one.

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In the Interest of TB and JW (Published): This short opinion was most likely published as a word to the wise: If you are appealing the termination of parental rights by the Texas Department of Family and Protective Services (DFPS), you’ve got to file a Tex. Fam. Code § 263.405(b) statement of points on which you intend to appeal. The pro se appellant here did not file that statement, so his appeal was dismissed, and the termination of his parental rights affirmed.

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Sembera v. PetroFac (Published): Tyler’s PetroFac, in its S-Corp form, vanished when its shares were exchanged for shares in a new “Limited” PetroFac corporation. An S-Corp shareholder dissented to this exchange. Under the Business Corporations Act, a dissenter has the right “restoration” of his shares -- so long as it is “without prejudice to any corporate proceedings which may have been taken during the interim.” The Tyler court uses the soon-to-go-into-effect Business Organizations Code to determine that the share exchange is a prejudiced proceeding under the Act. Bottom line: A dissenting shareholder can’t get “restoration” of shares in a corporation that no longer exists.

But it's a long road to get to that conclusion ...

The facts: Sembera was a senior engineer at PetroFac of Tyler (PT). PT was a Subchapter S corporation, where the income of the corporation isn’t taxed, but instead, the shareholders pay individual income taxes on corporate dividends. Sembera bought 5,000 of the 855,000 shares of PT.

Shortly thereafter, PT’s shareholders decided to raise capital by changing the corporate structure of the business. They would form PetroFac Limited (PL), a foreign corporation. Since PL would not be an S-Corp, it could raise money in ways that PT couldn’t (e.g., selling its shares to another corporation). PT shareholders had a choice: they could get shares in PL, or they could sell their shares to PT’s three largest shareholders (the Big Three) for roughly $54 per share. The Big Three would then exchange all of their PT shares for shares of PL. Either way, all PT shares were going to get turned into PL shares.

50 out of 51 shareholders favored the plan. Sembera went back and forth on what he was going to do. At one point he requested to be bought out at $504.02 per share, or $2,520,100. That was a non-starter from standpoint of the Big Three. There were a lot of emails and letters going back and forth. Sembera tried to file a formal dissent to the transition plan. He also sent an email that could be construed as accepting the $54.39 per share buyout.

In any event, it was getting close to the end of the year, and PT didn’t want to risk their S-Corp status by leaving this unresolved. Whether by Sembera’s explicit agreement to the buyout, or his dithering resulting in a default choice of buyout, the buyout went through. Counting Sembera’s 500 shares, a total of 40,800 PT shares were bought by the Big Three, and then all shares of PT were exchanged for shares of PL.

Sembera later refused the buyout money and sued both PT and PL saying that his PT shares could not be forcibly taken from him. He asked the court to return the PT shares to him.

Are you ready for some Statutory Construction!  (Sorry, Hank, Jr.)

To begin with, the Tyler court of appeals looks at statutory construction questions de novo. Article 5.13, section C of the Business Corporation Act (BCA) provides a dissenting shareholder a right to restoration of their stock “without prejudice to any corporate proceedings which may have been taken during the interim.” Tex. Bus. Corp. Act Art. 5.13, § C (Vernon 2003).

The case turns on the reading of “without prejudice to any corporate proceedings.”  There are statutory and common law rules of construction. Of the statutory rules, Chapter 312 of the Government Code applies here – the BCA was enacted before the more recent set of statutory construction rules, the Code Construction Act (Government Code Chapter 311). The common law rules of statutory construction also apply to the extent that they don’t conflict with the controlling statute.

A confusing mess:  The Court begins with the rule that: “[i]n interpreting a statute, a court shall diligently attempt to ascertain legislative intent and shall consider at all times the old law, the evil, and the remedy.” Tex. Gov't Code Ann. § 312.005. There was no right of restoration before the 1954 BCA. So old law = none, evil = no right of restoration, remedy = BCA’s creation of the right of restoration. What’s more, the BCA isn’t a code, but instead qualifies as a “Revised Civil Statute.” This is significant because Revised Civil Statutes are “liberally construed to achieve their purpose” as opposed to even older statutes, whose alteration of the common law was subject to “strict construction.” Tex. Gov't Code Ann. § 312.006. Taken together, these rules would seem to point to a broad reading in favor of the right of restoration.

But then there are the old standbys. “[W]ords shall be given their ordinary meaning.” Tex. Gov't. Code Ann. § 312.002(a). And, under the common law, statutes should be read as a whole and construed to give meaning and purpose to every part. Ex parte Pruitt, 551 S.W.2d 706, 709 (Tex. 1977). Using these rules, it’s clear that there’s some reason why the BCA conditioned and limited the right of restoration by making it “without prejudice to any corporate proceedings which may have been taken during the interim.”

On this front, the Court must first determine whether the term “corporate proceedings” is a term of art, because: there’s a “term of art” exception to the “ordinary meaning” rule: “If a word is connected with and used with reference to a particular trade or subject matter or is used as a word of art, the word shall have the meaning given by experts in the particular trade, subject matter, or art.” Tex. Gov't Code Ann. § 312.002(b).

That being said, the Court examined the use of the term “proceedings” in other statutes, and found no indication that it was a term of art within the BCA. So the “term of art” analysis doesn’t reveal the answer, it just closes the door on a potential (but ultimately fruitless) source for the answer.

Finally, there are no cases interpreting the scope of “”without prejudice” and “corporate proceeding” under Tex. Bus. Corp. Act. Ann. Art. 5.13, § C.  It looks like the Tyler Court will have to apply the “ordinary meaning” of these terms as a matter of first impression.

The cavalry arrives with the answer:  In determining the meaning of the “without prejudice” clause, Justice Worthen looked to the 2003 Texas Business Organizations Code that has applied to existing organizations since 2006, and will apply to pre-existing organizations starting January 1, 2010. That Code was not intended to be a substantive change, just a “plain language” statement of the laws already on the books (i.e., the Business Corporations Act). Using the Code to construe the Act proved particularly helpful. In fact, the Code has some very “plain language” on the subject:

the owner’s status as an owner of those ownership interests is restored without prejudice to any interim proceeding if the owner’s ownership interests were not canceled, converted, or exchanged as a result of the action or a subsequent fundamental business transaction ….

Tex. Bus. Orgs. Code Ann. § 10.367(b)(2) [emphasis added].

While the Act uses generic language, the Code spells it out bluntly. Sembera's S-Corp shares were “converted or exchanged.” Restoration was no longer an option.

The 1954 statute said what it meant and meant what it said – at least when read alongside the 2003 codification. (It’s kinda a King James/New Revised Standard sort of thing, but that’s a whole other can of worms.)

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In re Energy Transfer (Published): In a condemnation case, unless and until someone objects to the commissioners' award, mandamus is the only way to complain of a judgment that doesn't match what you think the commissioners ordered.

As long as condemnation domain cases remain before the commissioners, they are an administrative proceeding. Once the commissioners make an award, the trial court must enter judgment conforming to the award as an administrative act. The case only becomes a judicial proceeding if and when a party objects to the commissioner’s award.

Energy transfer felt that the landowner improperly presented (and the trial improperly signed) a judgment that had some “extras” that were not awarded by the commissioners. In particular, an abandonment clause, an indemnity clause, and a provision that Energy Transfer would be perpetually liable for restoration of the property. Even though Energy Transfer didn’t like those clauses, they didn’t want to object to the commissioners’ award and thereby open the matter up to a full-blown jury trial.

But since Energy Transfer did not invoke a judicial proceeding, they couldn’t pursue the judicial remedy of appeal to complain of the extras. Instead, mandamus was the only remedy available. On mandamus review, the Tyler court of appeals found no evidence that the commissioners had considered the extras. And since they weren’t considered by the commissioners, the commissioners could not have included them in their award. In the words of the Tyler court of appeals: “where a trial court fails to enter a judgment conforming to the commissioners’ award in a condemnation proceeding, that judgment is void.” Mandamus issues.

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Sawyer v. State (Unpublished Memo): Sawyer, a student at SFA, was convicted of felony stalking of a fellow SFA student.  Sawyer claimed he had no idea his actions would scare his target.  That opened the door to the testimony of two others he had stalked.  The two other victims rebutted Sawyer's claims.

Incidentally, Sawyer asked the Tyler court to dismiss the charges against him because of an alleged error in the indictment.  The indictment says Sawyer began stalking the victim "on or about" October 21, 2005.  Turns out, the stalking didn't start until October 31, 2005.  Sawyer would have a beef if the State had manipulated the date in the indictment to get around limitations.  But that wasn't the case here.  Sawyer's appeal is dismissed.

On the evidentiary point, compare this to today's Toliver decision.  In Toliver, a defendant charged with crack dealing rendered evidence of non-charged crack deals inadmissible by strategically narrowing his defenses.

 

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In re Dekard; In re Kennedy; In re Parker (all Unpublished Memos): Three very similar cases disposed of on the same grounds. Criminal defendants want the trial court to set bail, read them their rights, and issue notices of the charges against them.  They bring mandamus actions in the Tyler court.  The Tyler court denies all of them.  The defendants could have, and should have, raised these complaints via habeas corpus petitions in the trial court.

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Rapid Settlements v. SSC Settlements (Published): Arbitration is a bit like an alien abduction isn't it?  Well, I suppose if you're the party that wants arbitration, it's more akin to the Rapture.  Either way, the parties find themselves transported to another realm.  Leaving those left behind wondering what has happened and what to do.

OK, here's what I mean:  Here in our legal world, we've got our own community with its own rules.  Especially rules about who has enough interest in a matter to be a party to a case.  Not every case is just about the two parties to a written agreement.  There are often cases where third parties also have a big stake in the outcome.  Maybe these third parties intervene in a pending suit.  Maybe they sue in their own right.

But what happens when arbitration comes along like an alien spaceship, zaps the signatories up out of the legal world, and leaves the third parties behind?  This case raises that question.  That's why it's a "Case o' the Year" contender.

The details ....

Mr. Prante was getting annuity payments from a personal injury settlement. He needed cash now. He got the cash by assigning part of the payments to Rapid Settlements. The Rapid-Prante agreement had three key provisions: 1.) a right-of-first refusal for Rapid as to any other assignments of Prante's annuity. 2) a security interest for Rapid for any future transfers, and 3.) an arbitration clause. As required by Tex. Civ. Prac. & Rem. Code § 141.004, the Rapid-Prante agreement was submitted to the trial court for approval. It was approved.

Then Prante needed more cash. He assigned a different part of the annuity payments to SSC Settlements. He didn't tell Rapid. Apparently, SSC didn't ask. The SSC-Prante agreement was also presented to the trial court and approved.

And the fur started flying: 1. Rapid demanded arbitration with Prante and SSC. Via arbitration, Rapid wanted rulings against both Prante and SSC. 2. SSC sued in Wood County. SSC wanted a declaratory judgment that Rapid couldn't force them into arbitration, and a judgment that the terms of the Rapid-Prante agreement did not prohibit the SSC-Prante agreement. 3. Rapid responded in the Wood County suit by filing a motion to stay so that arbitration could proceed. 4. SSC filed for summary judgment. 5. The trial court denied Rapid's motion to stay, and granted SSC's summary judgment. 6. Rapid brings a mandamus petition and a regular appeal in the Tyler court.

The horse was already out of the barn on mandamus. Since summary judgment had been granted, there was nothing left pending in the trial court. Mandamus denied.

The outcome on regular appeal: SSC had standing to seek a declaratory judgment on the effect of the Rapid-Prante agreement. For one thing, Rapid was trying to use that agreement to force SSC into arbitration. For another, the validity of Rapid's right of first refusal would impact the validity of the SSC-Prante agreement.

SSC's standing notwithstanding, Rapid could force Prante into arbitration over the Rapid-Prante agreement. The trial court should have stayed the proceedings for those purposes. Which would have included a stay on any determination of the import of the Rapid-Prante agreement. Consequently, it was error for the trial court to grant SSC a summary judgment on the meaning of the Rapid-Prante agreement.

As an additional ground to set aside SSC's MSJ, the Tyler court noted that the Rapid-Prante agreement had already been approved by the trial court in a final order (the Tex. Civ. Prac. & Rem. Code § 141.004 approval order). Declaratory relief is not available to interpret prior judgments of the court.

Rapid asserts that it was likewise error for the trial court to award attorney's fees to SSC in the declaratory judgment action. After all, SSC lost, didn't they? Well, no. Not entirely. SSC did prevail on one point. Rapid had no right to compel SSC to arbitrate.  SSC was entitled to attorney's fees.

In my view Chief Justice Worthen's decision is the right result in this mess of a case.  But what are the ramifications of that result?

Let's play what if: Assume that Rapid and Prante decided to forget about the arbitration clause and take their dispute to the trial court.  In that event, the trial court would decide the meaning of the Rapid-Prante agreement in the light of day.  And, as the Tyler court notes, SSC's position as to the Rapid-Prante agreement gives SSC standing. SSC could intervene in the state court action. But now SSC is on the outside as the Rapid-Prante arbitration effectively determines SSC's rights behind closed doors.  Or does it?  There's a whole other can of worms waiting behind the door of "arbitration awards and collateral estoppel."

In a 2004 article in Litigation, the Journal of the Litigation Section of the American Bar Association, Patricia Lee Refo (the section chair at the time) wrote:

The trend toward privatization of dispute resolution is well documented, though anything approaching meaningful statistics is hard to come by. Virtually every consumer contract now requires that the consumer waive her rights to adjudicate any dispute in court, and courts have  enforced such arbitration clauses. As Thomas Stipanowich of the CPR Institute for Dispute Resolution reminded us, the ADR field is largely unregulated and, by its nature, overwhelmingly private. ...

The privatization of dispute resolution has a host of consequences. The pleadings testimony, documents—and the result—are shielded from public view.  Indeed, that is one of the reasons litigants turn to private dispute resolution in the first place. Neither the public nor the press has a seat in the private arbitration courtroom. Arbitration decisions contribute nothing to the development of the common law.

Something to think about.

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In re Bane Investments (Published):   Mandamus motion denied as untimely.  The trial court disqualified Bane's attorney more than a month before an MSJ hearing.   Bane wanted the Tyler court to reinstate that attorney so that he could represent Bane at the MSJ hearing.  Relief was denied because Bane didn't file the mandamus petition until nine days after the MSJ hearing.

The disqualified attorney was Judge Parsons, who had presided over the case for four years.

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Ex parte Hardwick (Unpublished memo): After a 19-year-old Hardwick pled guilty to a DWI, his grandmother fired his attorney and got him a new one.  The new attorney tried to set aside the guilty plea on grounds that the first attorney scared Hardwick into the deal.  The Tyler court lets the plea stand.

The first attorney told Hardwick that the deal on the table was half of what he'd get if he lost at trial, which he almost certainly would.  The deal was for 180 days, suspended to one year of community supervision, and a $1,000 fine.  The term of community supervision was half of the maximum, as was the fine.  And Hardwick did zero jail time, in spite of a statutory mandate that he do at least 72 hours.

But would Hardwick have gotten the maximum at trial?  There was no testimony about the "typical" post-conviction sentence.  So, in the words of the Tyler court, the accuracy of the first attorney's "half of what you'd get at trial" statement was "a question for reasonable disagreement."  On that score, the Tyler court defers to the trial court.  The trial court denied habeas in the first place.  The trial court would know the likely post-conviction punishment range, and could have set the deal aside if the first attorney's assessment was out-of-line.  The trial court let the deal stand.  So does the Tyler court.

Besides, matters of "reasonable disagreement" are a far cry from the cases where the attorney's advice has rendered a plea deal involuntary.  For example, telling a client to agree to a life sentence to avoid the death penalty -- at a time when the death penalty was not available.  Ex parte Burns, 601 S.W.2d 370 (Tex. Crim. App. 1980),

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Sharp v. Smith (Published): Purchasers in contract-for-deed gone bad seek liquidated damages, specific performance, and in the alternative, rescission.  Sellers say: "Ah ha -- we like rescission!"  They pony up the money already paid by the purchasers, and ask for a summary judgment that: a. grants rescission and b. disposes of all of the purchasers' claims.  The trial court grants the motion.

"Not so fast, my friend" says the Tyler court.

Actually, the Tyler court's real words are: "We interpret [the seller's pleading] as a motion for partial summary judgment on the issue of election of remedies."

The sellers had picked the purchasers' remedy for them.  That's a no-no, unless the sellers meet all of the requirements for the affirmative defense of election of remedies.  There is an election of remedies when: (1) one successfully exercises an informed choice (2) between two or more remedies, rights, or states of facts (3) that are so inconsistent as to (4) constitute manifest injustice. Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 851 (Tex. 1980).   The sellers didn't prove those points.

Since the Tyler court reverses and remands on those grounds, they also address the question of: "Seller or Sellers?"

The sellers were husband and wife.  The wife didn't sign the documents.  But the property at issue was community property.  Consequently, it was error to grant the wife a summary judg