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

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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Webb v. State (Unpublished Memo): Webb complains that the trial court didn't even consider her application for probation of a felony marijuana possession charge.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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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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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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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.

In the early 1990's Mr.Dotson worked for and befriended the Snows, an older couple. Then Mr. Snow died, leaving Mrs. Snow as the sole owner of hundreds of acres of Cherokee County countryside. Mrs. Snow, according to the Tyler court's opinion, "was not financially sophisticated and did not know how to care for the property." Mr. Dotson offered to lease the entire property for $2,500 per year. In addition, one parcel would be automatically transferred to Mr. Dotson in 2003, and he would have an option to purchase the remainder, with the lease payments applying to the purchase price.

Sound like a lousy deal for a poor widow? Mr. Wells and several of the appellants thought so (the opinion doesn't state their relationship to Mrs. Snow, but the appellants are bound to be her kin). One of the appellants was in the room when Mrs. Snow signed the deal, and told her to her face that it was a bad deal, and that Mr. Dotson was only interested in her because of the land. The appellants did not stop there, Since their word alone didn't work with Mrs. Snow, they consulted a lawyer, who also said that it was a bad deal. For her part, Mrs. Snow acknowledged what was being said, but didn't budge an inch. As the opinion quotes her: "'If he takes me to the cleaners, he'll just have to take me . . . I've prayed about it[.] I've studied on it . . . I can't go back on my word[.] I can't welch on a deal.'"

Mrs. Snow died within Mr. Dotson's option period, but before he had exercised the option. He exercied that option once an executor was appointed. Mrs. Snow's kinfolk told the executor to take no action on the option.  Litigation ensued.  Mr. Dotson and his wife sought specific performance of the option under breach of contract and Texas Probate Code, Section 27. The appellants responded with counter-claims of breach of fiduciary duty, breach of contract, fraud, fraud in the inducement, statutory fraud, and unjust enrichment, as well as a challenge to Mrs. Dotson's standing. The Dotsons replied to the counterclaims with defenses of limitations, laches, waiver, and estoppel.

And your blog author took a drink.

Here are the highlights:

The Dotsons sought and offensive summary judgment on their Probate Code theory, as well as defensive summary judgment on all of the counterclaims. The trial court granted the Dotsons all of that relief.

The Tyler court said:

Reversed and Rendered: Probate Code Section 27 does allow for specific performance, but only when the deceased had not fulfilled a definite agreement to sell property. An option agreement is not a definite agreement. At the time Mrs. Snow died, Mr. Dotson had not exercised his option and thus Mrs. Snow did not have a definite obligation to deed the property to him.

Reversed and Remanded: The appellants counterclaims of fraud, etc., are based on things Mr. Dotson did more than a decade ago. If Mrs. Snow's kin had sued first, their claims would be barred by limitations. But they didn't. Mr. and Mrs. Dotson sued first -- to enforce the option contract. The Tyler court found Mr. Dotson's conduct leading up to the option contract was "logically related" to that contract and part of the same transaction. Those are the magic words under the limitations exception of Texas Civil Practice and Remedies Code, Section 16.069. Though otherwise time barred, the appellants were entitled to bring their claims in response to the Dotson's lawsuit, which they did. It was error for the trial court to dismiss those claims. The Tyler court reverses the summary judgment and remands so that the counterclaims can go to trial.

Affirmed: Well, not all of the counterclaims will be going to trial. Bad deal or not, Mrs. Snow made a deliberate decision to stick with it. That's called ratification, and it's a defense that the Dotsons asserted to the claim of fraud in the inducement. The trial court did the right thing by dismissing the fraud in the inducement claim. But ratification is not a defense to the remainder of the claims.

Dismissed for Want of Jurisdiction: Mrs. Dotson was not a party to the option contract. Although she is certainly interested (in a common sense use of the term) in how her husband's lawsuit turns out, that doesn't give her standing (aka make her a legal party to the case.)

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

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

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

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

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

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

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

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

Neither side gets anything. 

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Blanton v, State (Unpublished Memo): Burglary of a habitation conviction affirmed because Blanton only presented the Reporter's Record from the first day of a three day trial.  That doomed all of his complaints on appeal.  The Tyler court can't conduct legal or factual sufficiency reviews of the evidence without all of the evidence.  Likewise, Blanton complains of the trial court's handling of a question from the jury, but the court reporter's record from that day is missing.  Finally, Blanton's complaint about the jury charge is doomed to failure as well because, even if there is error, the Tyler court would need to review the whole record to see if that error caused harm.

Although not necessary to the decision, the Tyler court does give some guidance on future burglary of a habitation cases.  Blanton wanted an instruction on consent to enter the habitation, apparently on the belief that consent is an affirmative defense.  The Tyler court notes that:

[S]trictly speaking, it is not a defense to a burglary charge that entry into a habitation was consensual. Rather, the State must prove that entry was without the consent of the owner.

Also of note: The Tyler court observes that Blanton's failure to bring forward the whole record is a strategic choice of the sort that the State made in Must Have Been a Boring Video.

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Wooten v. State (Unpublished Memo): Another of a raft of sufficiency of the evidence cases.  This one is a little different because it's an appeal from a revocation of community supervision.

Wooten was sent to a Substance Abuse Felony Punishment facility as part of his probation.  He was required to abide by all the rules and terms of the program.  He didn't.  So it didn't matter that he completed the program with a "minimal completion" discharge.  His failure to abide by the rules included threatening other participants.  That was enough to get Wooten kicked out of community supervision and into prison.

This one wasn't really a close call, but is is worth noting that the standard of review in this context is "abuse of discretion" and not the typical legal or factual sufficiency standards.

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

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

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

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

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

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

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

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Parrish v. ETMC Athens (Published Memo): The trial court was within its discretion to deny an eve-of-trial motion to reopen discovery by a med-mal plaintiff.  The plaintiff did not want any more discovery from the defendant, but instead was asking for more time to conduct discovery on surgeries that she contends were related to her injuries.  But that was information under her control that, pursuant to her duty to supplement discovery responses, she should have provided to the defendant.  From the opinion, this sounds more like a back-door continuance motion than a discovery case.  The trial resulted in a defense verdict.

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In the interest of RDG and In the interest of TDM (Published Memos): Texas Family Code § 263.405 may be unconstitutional to the extent that it requires indigent parents whose rights have been terminated to state their grounds for appeal before they get the trial court record.  I say "may" be unconstitutional because, after the parents here got the record, they didn't find any appellate points they had missed.  The Tyler court dismissed the appeals for that reason.  The Tyler court did not decide the constitutional question.  But the tea leaves in these companion decisions make for interesting reading.  This issue has ramifications for the FLDS proceedings.

Background: Say that a husband beats his wife and is convicted of assault.  He appeals that conviction.  While his appeal is pending, the wife is thrown in jail, and her efforts to divorce the bum are held in limbo.  Outrageous, isn't it?  That could never happen, could it?

Well, when a parent's rights are terminated by the Texas Department of Family and Protective Services, it is the kid who is stuck in foster care -- unable to be adopted because of the chance, however remote, that a long and seemingly incomprehensible legal process will give her back to her parents.  Technically, the parent's rights have been "terminated" at the trial level.  In reality, the parent can use the appeals process to exercise considerable control over the child.

That doesn't sit well with the Texas Legislature.  Over the past several sessions, they've adopted measures to shift the balance away from the parent's right to appeal, and towards the kid's ability to move on.  See here, here, here, and here.  For the most part, those measures are combined in Texas Family Code § 263.405.  As always, it's up to the courts to hash out the details of new statutes ...

Texas Family Code § 263.405 requires parents whose rights are terminated in a DFPS proceeding to file a list of appellate points within 15 days after the order of termination. For indigent parents, that's a problem. It means that they must designate their grounds for appeal before they are found indigent by the court, and hence, before they get a free copy of the trial court record. By statute, the indigency hearing takes place 30 days after the order of termination. At that time, the trial court considers the parent's claim of indigency, and also considers whether the list of appellate points is "non-frivolous." The parent only gets a free copy of the record if they are indigent and their appellate issues are "non-frivolous."

In these companion cases, indigent parents alleged that sequence is unconstitutional. How can they know what to appeal without the record? Especially if the appeal is taken over by a new attorney who wasn't present at trial.

They may have a point. In the words of the Tyler court:

"[A]n indigent parent cannot obtain a free record until the trial court finds her appeal is not frivolous, a finding made after reviewing her points for appeal, which require assessment of the record to formulate. ... It appears that application of the statute ordinarily creates such a conundrum ...." [emphasis added]

That language notwithstanding, the Tyler court held that these appeals presented hypothetical questions.  The parents here didn't show harm because (even after they got and reviewed the record) they didn't show that there were points to be found in the record that were left off of their lists.  Under the doctrine of ripeness, courts are in the business of resolving actual disputes, not imaginary ones.  Since these parents couldn't show how they'd been harmed, there wasn't an actual dispute for the Tyler court to resolve.  The appeals were dismissed without expressly deciding the constitutional issue.

FLDS implications: It's pretty easy to see a day coming when a mother in an FLDS case asserts indigency and appeals the termination of her parental rights. The FLDS cases are enough of a challenge on their own without Family Code § 263.405 coming into play.  Perhaps that's why the Supreme Court of Texas recently requested full briefing in two parental termination cases -- better to grab this bull by the horns now than to let it become an issue in the FLDS cases.  It may be too late to head this off.  But it's worth a try.  If I'm guessing right about this, expect quick action on the two cases below.  Keep in mind that the same appellate attorneys who are representing the CPS arm of DFPS in the mandamus over Judge Walther's decision are working on these appeals as well.

In one, the Eastland Court of Appeals had issued a decision enforcing Family Code § 263.405.  The parents in that case didn't file the required statement of appellate issues.  So the Eastland court denied their appeal.  The docket before the Texas Supreme Court is here. 

In addition, the Texas Supreme Court requested full briefing on an appeal of a Tyler decision.  In July of 2007, the Tyler court decided In the interest of BG, et al.  It was a 2006 case out of Angelina County being brought by a parent whose rights had been terminated in a DFPS proceeding.  The trial court denied the parent a free record.  It's unclear whether the trial court decided that the parent was not indigent, or whether the trial court decided that the parent was bringing a frivolous appeal.  Either way, the parent complains that the denial of a free record violates his constitutional rights.  Apparently, BG's constitutional claim is more of a direct challenge to the trial court's decision on indigency/frivolousness than it is a challenge to the sequence in the Family Code.  Be that as it may, BG did not urge that constitutional claim at the indigency/frivolousness hearing.  So the Tyler court ruled that the complaint had been waived.  The docket before the Texas Supreme Court is here.

So here we are in 2008, with BG and BG's siblings still in limbo as their father appeals the 2006 termination of his parental rights.

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Darby v. Darby et al. (Published): A recently-minted ex-wife wanted to appeal her divorce, but claimed she didn't have the money to pay the court reporter or the district clerk for the necessary records.  She filed an affidavit of indigency under Rule 20.1(b) of the Texas Rules of Appellate Procedure.  The ex-husband, the court reporter, and the district clerk all contested that affidavit.  As a result, there was a hearing.  After the hearing, the trial court ruled that the ex-wife had the wherewithal to pay if she really wanted to.  The ex-wife, acting pro se filed an appeal of that ruling.

In her ninth of twelve issues, the ex-wife insisted that, since she was pro se, she shouldn't be held to the same standards as attorneys.  The Tyler court reasons that the same standards must apply in either case.  "Otherwise, an advantage is given to a party not represented by an attorney."

With that key point decided, the Tyler court finds that the ex-wife had waived several issues, either by failing to object at trial, or failing to properly brief the matter.

Turning to the merits of her claim. the Tyler court notes that this is a matter entrusted to the trial court's discretion.  What's more, "[a] trial court is given great latitude in believing or disbelieving a witness's testimony, particularly when the witness is interested in the outcome."  Despite her testimony to the contrary, the trial court found that the ex-wife had not made a good faith effort to round up the money.  Tellingly, she had two horses that she refused to sell.  Those horses were costing her $500 a month in upkeep.  She could have used that money to pay the court reporter and the district clerk.   She wasn't indigent.

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Hack v. State (Unpublished Memo): A wrinkle in the habitual offender law.  Hack was charged with sexual assault of a minor, which carries a two to twenty year sentence.  But the State said Hack had previously been convicted of aggravated sexual assault of a child.  If that's true, Hack gets a mandatory life sentence on each of the present sexual assault charges (there were four counts).

Hack denied any prior conviction.  So the State had to prove, beyond a reasonable doubt, that Hack did indeed have a prior conviction.  According to prior cases, one way the State can do that is to match the defendant's fingerprint to the fingerprint from the prior judgment of conviction.

The prior judgment of conviction in this case was from 1993.  Apparently, the judgment itself didn't have Hack's fingerprint on it.  As a result, Hack contends that the State didn't offer sufficient proof of the prior conviction.

But there was another order in the 1993 case file that had Hack's fingerprint.  The Tyler court said that was enough.  The life sentences are affirmed. 

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Archer v. TDCJ-ID, et al. (Published Memo): On January 9, 2008, the Tyler court issued the Crosby decision.  It held that inmate civil right suits could be dismissed without a hearing if the inmate's pleadings don't comply with Tex. Civ. Prac. & Rem. Code Chapter 14.  This case shows that Crosby doesn't apply to suits against prison officials in their individual capacity.

Archer is an inmate at the Powledge unit in Palestine, Texas. He got burned when attempts to start a diesel engine went awry. He had been working on the engine at the direction of TDCJ-ID employees. He filed suit against TDCJ-ID, as well as the individual employees.

The Texas Civil Practice and Remedies Code imposes procedural requirements on inmates filing civil rights claims against the State. For one thing, the prisoner has to exhaust administrative appeals within the prison. Archer did not do that here. Consequently, his claims against the State were rightly dismissed by the trial court.

But Archer had sued the employees, too.

The Texas Tort Claims Act waives sovereign immunity for claims involving the use of a motor vehicle. Since that's how Archer got his burns, his claims against the individual employees could proceed. What's more, the administrative grievance process within the prison only covers claims against the prison itself, not the prison's employees. It was an abuse of discretion to dismiss those claims for failing to comply with the Texas Civil Practice and Remedies Code.

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Moody v. State (Unpublihed Memo): Moody's own statements along with those of her maintenance contractor were sufficient to corroborate an accomplice’s testimony.

Moody was charged with organized criminal activity concerning gambling at “The Spot” in Trinity County. A co-conspirator said Moody ran The Spot.  Moody denied that, but admitted being at The Spot on occasion, and also admitted owning gambling machines used at another facility, “The Spur.”

An A/C and electrical contractor testified that Moody called him to do repairs at The Spot and personally inspected his work on-site.  That sufficiently corroborated the testimony that Moody ran The Spot.

Moody also contended there was error in the the trial court's answer to a written question from the jury.  Since Moody did not object to the answer at trial, her appeal is rejected.

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Goshen v. State (Unpublished Memo): This case points out the "Vannortrick Gap."  Before accepting a plea, trial courts are supposed to let defendants know about the rights they are waiving, and the potential consequences of a guilty plea.

If a trial court doesn't touch all of the bases on the discussion of rights, the defendant doesn’t get a slam dunk appeal. Instead, under “harmless error” analysis, he must show that his plea would have changed had he been told his rights and/or the potential consequences of the plea. Except ...

The Court of Criminal Appeals made a blanket rule requiring that pleas be set aside if the defendant’s citizenship status isn’t in the record and he wasn’t told that a guilty plea could result in deportation. Vannortrick v. State, 227 S.W.3d 706, 708 (Tex. Crim. App. 2007).  So the defendant can get a slam-dunk appeal after all.

The trial court didn't know about Vannortrick because it hadn't been handed down at the time of the plea hearing.  Thankfully for Goshen, Vannortrick was handed down before his appellate brief was due.  See the docket sheet. 

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Jones v. State (Unpublished Memo): Facing a state jail felony cocaine possession charge, the defendant pled guilty, but decided to represent himself as sentencing was put to the jury.  The trial judge gave the required warnings.  Jones now says those warnings weren't strong enough.  The trial court's judgment is affirmed.

Jones asked to represent himself.  The trial judge tells him it's a bad idea. Spends six pages of the record giving him detailed warnings about the challenges of voir dire, the Rules of Evidence, etc. Tells him that his court-appointed attorney is one of the best there is, and the defendant would do best to keep him. The defendant’s one and only point of error on appeal is that the trial judge was right, but just wasn’t strong enough with his warnings. The Tyler court says the trial judge did his part. It was the listening part where Jones had trouble.

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Middleton v. State (Unpublished Memo): On the evening of Easter Sunday, 2006, Middleton fired a great number of rounds with his AK-47. He didn’t kill the people he was shooting at. Instead, the rounds carried some distance, and one of his bullets killed an innocent bystander, Dorcas Peroutka,

The sheriff didn't need a warrant to get the murder weapon -- he had consent..  Middleton was 18 years old and living with his father.  Middleton thought his bedroom was his, and his alone.  So he stashed the AK-47 there.  But his father testified that he could go into that room as he pleased, without asking the son's permission.  Consequently, the father had the authority to let the sheriff search Middleton's bedroom.

Middleton also asserted that his father consented to the search out of fear of the sheriff.  In other words, it was coercion, not consent.  But the father testified that he had known the sheriff for years, was on a first name basis with the sheriff, and felt comfortable around the sheriff.  No coercion there.

No charge error: Middleton had the option to request that the jury consider a lesser included offense. As a matter of strategy, he put the jury to a choice of murder or acquittal. The jury chose murder. The omission of some statutorily mandated instructions can be reviewed under the “egregious error” standard even when there was no request for the instruction at trial. The defendant here asked for review under that standard. But lesser included offenses are not statutorily mandated. This is not an “egregious error” case. This is plain old waiver.

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Ingram v. State (Unpublished Memo): Motion to suppress denied at trial, denial affirmed on appeal. A multi-step traffic stop eventually leads to discovery of cocaine in appellant’s shoe.

Troopers stop vehicle on I-20 in Smith County for speeding. Occupants “’extremely, visibly’ nervous.” They give slightly different accounts of whereabouts before stop.

One of them blurts out: “There ain’t any of that hanky-panky stuff going on around here.” Criminal record check reveals passenger had long rap sheet. Passenger fidgeting in vehicle, drops out of sight. Troopers frisk occupants for weapons. Passenger has large roll of bills in his pants. Troopers ask for, and get, permission to search vehicle. Notice spare tire is missing, consistent with that area being used in the past for smuggling. Also hear rattle in rear door of sedan – possibility of hidden compartment.

About 26 minutes have gone by. Troopers ask for, and receive, permission to call canine unit (will take 10-15 minutes more). Occupants standing next to patrol car at this point. They can’t keep still. Passenger’s left shoe isn’t on all the way. Troopers inquire about it. Passenger takes of right shoe. Troopers insists on seeing left shoe. Passenger throws left shoe to the driver and lunges at one of the Troopers.

Occupants versus Troopers in hand-to-hand combat. Outcome: Troopers, first round TKO.

Troopers pick up shoe and discover two bags of cocaine. Passenger appeals conviction on grounds that there wasn’t probable cause to search his shoe, and on grounds that the Troopers had unreasonably and unconstitutionally dragged out the stop. Trial court affirmed on both issues.

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In re State (Published): The State brought a mandamus to disqualify defense counsel. The same defense counsel represented two allegedly drunken drag racers A and B. There’s a potential for conflict in that dual representation. But that potential never materialized into an actual conflict because: 1.) the State’s non-disclosure of B would have kept B off of the stand in A’s trial, and 2.) the State never made a plea offer to A. Disqualification denied by the trial court and the court of appeals.

A and B were allegedly drunk and drag racing. They were represented by the same attorney. The State tried A first, apart from B. The State tried to call B as a witness. But B wasn’t on the State’s witness list. A’s attorney objected. The State tried to disqualify A’s attorney by pointing out that he was B’s attorney as well, and would have a conflict-of-interest if B took the stand.

Could B take the stand? Trial counsel discussed this with the trial court.  The State hadn't disclosed B as a witness.  Consequently, the discussion turned on whether the State could get around the lack of disclosure by calling B as an “un-anticipated rebuttal witness.” But to the trial court, it appeared “logical” that you could anticipate calling Racer B in a case against Racer A.  Put another way, it's hard to see how the State seriously claim that its need for B's testimony was unanticipated.

As that discussion was underway, the State announced that it wanted to make a plea offer to B. The trial court directed B, and B alone, to meet with the State. B did so. When B came out of that meeting, he testified (outside of the jury’s presence) that: 1.) the meeting was the first time the State had made any offer to him; 2.) he wouldn’t take the offer just made; and 3.) he would take the Fifth if asked about what he and A had done. There may not be loyalty among thieves, but there is among accused drunk drag racers.

Practically speaking, that ended matters. Without explicitly going back to the effect of the non-disclosure, the trial court denied the State’s motion to disqualify A’s counsel. The State brought a writ of mandamus. The trial court was affirmed, but not because of B’s refusal to testify.

The Tyler court held that the trial court had implicitly ruled the State’s non-disclosure of B meant B couldn’t have taken the stand even if he had wanted to. Hence defense counsel wouldn't be put in the position of having one client at the defense table and another on the stand. Hence no actual conflict, and no abuse of discretion in refusing to disqualify A’s counsel.

Thoughts to ponder: These events may have raised an actual conflict between counsel and B. Although B had retained counsel, B didn’t have the benefit of counsel’s input in considering the offer. And even if B had been able to confer with counsel, what about counsel’s loyalties to A? The Court passes on this question because this is a mandamus in A’s trial, not B’s.

Also, what would have happened if the State had made its offer to B earlier? Or what if B was on the State’s witness list, but B refused to testify? Questions like that are why Rule 1.06 “Conflict of Interest: General Rule” of the Rules of Professional Conduct states at Comment 17 that “Inquiry by the court is generally required when a lawyer represents multiple defendants.”

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Edmonds v. Gray & In re Edmonds (Published Memo):  Appointment of a receiver is within the trial court’s judgment enforcement power.  Divorce decree provided that a Lake Tyler East house would be sold for an “mutually agreed” price. Initially, the exes did agree on a listing price, but then the house sat on the market and they couldn’t agree on "how low to go" to get it sold. The court’s appointment of a receiver to sell the house was in the nature of enforcement of the decree as written and was not an impermissible substantive modification of the decree’s terms. Tex. Fam. Code § 9.007(a).

Interlocutory appeal is the appropriate tool to challenge appointment of a receiver.  A challenge to the appointment of a receiver is specifically enumerated in the interlocutory appeal statute. Tex. Civ. Prac. & Rem. Code § 51.014(a)(1). That being said, incidental rulings in an order appointing a receiver are not covered by the statute, leaving mandamus as the only avenue of pre-trial review for those issues.  Such as the $6,000 monetary award to Edmonds.

Given the state of the housing market it might be best to include time limits on agreements to sell property incident to a divorce. Especially (as here) where the property is high value or has unique characteristics. Also, take into account the motivations of the parties. In this case, the ex-husband wanted to wait until the market rebounded because: a.) he was living in the house; and b.) the ex-wife was guaranteed a substantial portion of the proceeds, while c.) the ex-husband would get what was left, if any.

Another factor justifying the receivership in this case was the ex-wife's post-divorce protective order prohibiting the ex-husband from contacting her in any way other than via counsel. Finally, pay attention to the wording of your orders. The order appointing the receiver was submitted with the language that the house was to be sold in “not less than” 180 days. Apparently, (and curiously) that means that the house can’t be sold for the first 179 days after the appointment of the receiver.

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In re Burrow II: (Unpublished Memo):  Burrow's pro se mandamus petition is denied because the record shows that he has counsel.

Burrow's mandamus petition was before the Tyler court earlier this year: In re Burrow I.  I didn't post about it because it was unremarkable -- his mandamus was dismissed because he didn't present a record of the trial court's proceedings.

The mandamus was dismissed just as swiftly on the second go-round, but the reason for dismissal is much more interesting this time.

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Ex parte McAndrew (Unpublished Memo): McAndrew was convicted of assaulting his ex-wife's new hubby during a visitation exchange (McAndrew and his ex have a daughter).  McAndrew complains of ineffective assistance of counsel on several grounds.  All of which are denied.

This case has a good overview of the caselaw and standards of review for ineffective assistance of counsel in the habeas setting.  In large part, that's because the Tyler court had seen this case before. Initially, the trial court denied relief without a hearing.  McAndrew successfully appealed the lack of hearing.  But in a case of "watch what you ask for ..." he got the hearing.

And after the hearing, the trial court entered detailed findings of fact adverse to McAndrew that were relied on by the Tyler court.

First, McAndrew feels that his attorney should have objected when his ex testified that he was an abusive hothead prone to violence.  But, by the time his wife got to the stand, McAndrew had already shown himself to be a hothead.  In spite of his attorney's advice about appearance and proper courtroom demeanor, McAndrew showed up for trial with a rumpled shirt and wild hair.  He rolled up his sleeves.  Every time he heard something he didn't like, he'd get red-faced and lean over the table like he was "ready to pounce."  His attorney figured it would only hack the jury off to pretend that McAndrew wasn't a hothead.  The trial court agreed.

Likewise, McAndrew felt that his attorney should have cross-examined his ex on a prior written statement that could be read to contradict her testimony about the assault .  But the trial attorney figured that the statement, while ambiguous on the details of the assault, was very clear on some other, damaging matters.  The statement was better off left alone.  The trial court agreed with that, too.

McAndrews felt that his daughter should have been called to the stand to refute her mother's testimony.  McAndrew's trial attorney recalled that, at the time of trial, McAndrews didn't want his daughter testifying.  But the attorney didn't recall the exact reasons for that decision.  In any event, under the standard of review, if there's no evidence of the attorney's reasons, it's presumed he had good ones.  The trial court offered a couple.  One: maybe McAndrews at least had the decency not to put his daughter in the middle of this.  Two: this was a "damage control" case.  They jury was going to say he committed the assault, the only question was how mad they were going to get and how long the sentence would be.   Calling a child to the stand tends to get juries mad.

Finally, there's the jury argument issue.  McAndrews said the assualt was self-defense.  The State said the situation had to be viewed from the standpoint of a reasonable person in McAndrew's shoes -- not the way McAndrews himself subjectively viewed things.  McAndrews thought that was an objectionable misstatement of the law.  It wasn't..  It's a correct statement of the law.

 

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Gibbs v. State (Unpublished Memo): Silence and "no objection" are different things. 

Gibbs filed a motion to suppress some drug-related evidence prior to trial.  Having obtained a ruling on the motion to suppress, error was preserved -- there was no need to object to the evidence again at trial.

At trial, the State offered a slate of exhibits, including the evidence addressed by the motion to suppress.

Counsel for Gibbs said: "No objection."

And with that, counsel waived the issue.  All of the work on the motion to suppress was for nothing.

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In re Rusk Energy (Published): Trial court allowed a gas well to be drilled, but required a $100,000 bond to compensate the surface owner for damages from unreasonable use.  There certainly had been use of the surface -- at the time of the hearing, the driller had prepared the well site but had not completed the well.  Even so, it was error to require a bond because there was no evidence that the driller made unreasonable use of the surface.

The arguments against mandamus are noteworthy.

The trial court's order was something of a split decision for Rusk Energy, the majority working interest owner.  Yes, they could continue operations, but only if they posted a $100,000 bond.  Having sunk so much time and money into the well, the only sensible thing Rusk Energy could do was post the bond and get on with it.  So that's what they did.

The surface owner contended Rusk Energy's actions waived their right to seek mandamus relief.

First, the surface owner contended that the controversy became moot once Rusk Energy posted the bond.  True enough, there are situations when a party's payment of a judgment destroys their right of appeal.  But this isn't one of them.  The key is that Rusk Energy's payment wasn't free and voluntary.  A free and voluntary payment can rightly be construed as a decision to put an end to the litigation.  But, economically speaking, the trial court's order put a gun to Rusk Energy's head.  Their payment wasn't voluntary.  No one could reasonably believe such payment was free choice to end the matter.

Next, the surface owner contended that Rusk Energy's continued operations constituted acceptance of the judgment.  As before, there are cases saying you can't cherry-pick judgments -- you've got to take the bad with the good.  This is called the "acceptance of benefits" doctrine.  But, again, the acceptance has to be voluntary.  Under these circumstances, Rusk Energy's actions weren't voluntary.

Question: Who has the burden to show economic duress/lack of voluntary choice?  The opinion doesn't spell it out, but it looks like the burden is on the party claiming it.  Rusk Energy put on such evidence in this case, and their evidence was cited extensively by the Tyler court.

As a third reason to avoid the merits of the mandamus, the surface owner objected that Rusk Energy had delayed filing its mandamus for six months.  If there were no good reason for that delay, the mandamus would have gotten tossed.  But there were good reasons.  The trial court ordered the parties to mediation, and was reconsidering its ruling.  The mandamus was filed within a month after the ruling on reconsideration.  Under the facts of this case, that's reasonably timely.

The surface owner failed to show that the use was unreasonable.  There was nothing in the lease that limited the use of the surface or required the payment of damages on a per-acre basis.  So the mineral estate dominates.  The surface owner has to show that the use of the surface is unreasonable.  The surface owner here put on no such evidence.

The Tyler court doesn't rule out bonds in appropriate cases.  What if the surface owner had shown that Rusk Energy's use was unreasonable?  The Tyler court leaves open the possibility that they could have gotten a bond with proper pleadings and proof.

Rusk Energy could not have gotten this mandamus relief before 2004.  Just a few years ago, Rusk Energy would have had to show that the bond was so large that it precluded Rusk Energy's development of the merits of its case or placed it in danger of permanently losing substantial rights.  Neither was the case.  Rusk Energy had the wherewithal to continue the case.  And they could have won it, thereby getting the bond dissolved at the trial level.  So, under that standard, no mandamus would have issued.

But in 2004 the Texas Supreme Court issued In re Prudential, holding that flexibility is the "principle virtue" of mandamus, and that "rigid rules" are at odds with that virtue.  Accordingly, "significant rulings in exceptional cases may be essential to preserve important substantive and procedural rights from impairment or loss, allow the appellate courts to give needed and helpful direction to the courts that would otherwise prove elusive in appeals from final judgments, and spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings."  Hence the relief for Rusk Energy in this 2008 case.

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Wheeler v. State (Unpublished Memo): The evidence showed that a cracked-up Wheeler delivered a horrible beating to his pregnant wife.  Wheeler appealed on the grounds that, while there was evidence of assault, there was insufficient evidence of an assault in the manner alleged in the indictment.  Wheeler even took the position that, since the beating took place in an isolated area, a.) his wife was the only one who could say whether the beating was administered in the manner alleged, and b.) his wife's criminal history makes her less-than-credible.

The Tyler court found the language of the indictment broad enough to cover the evidence used to convict.  Likewise, the Tyler court rejects the attack on the wife's credibility.  That was a fact question for the trial court that that Tyler court will not disturb.  Life sentence.

I couldn't give this one a catchy title.  The facts are too disturbing.

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TxDOT v. Anderson et al. (Published): To show that the State of Texas had actual notice of a claim, you've got to put your hands on State documents showing that the State was aware of its fault within six months of the event.

When should the State of Texas have to bother itself with investigating a potential claim?  If it's your claim, you'd say the answer is "always."  But let's be real.  Nothing would ever get done if the State of Texas really had to investigate its culpability every time something bad happened on State property.  So there's got to be line drawn somewhere.'

First, the easy part.  The Tort Claims Act says that parties must give the State written notice of their claim within six months of the event complained of. Tex. Civ. Prac. & Rem. Code Ann. § 101.101.  See, there's a nice, easy to figure out line.  Either there's a letter in the file or there isn't.

Now the hard part.  If the claimant doesn't send the letter in time, they still have the sovereign's permission to sue the sovereign as long as the sovereign had "actual notice" of the claim. Id.  As interpreted by the Texas Supreme Court, that means the State of Texas must have "subjective awareness of its fault" in the matter. Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338, 347 (Tex. 2004).

So, does that put the courts in the position of trying to read the mind of the State of Texas?  No.  It's not a matter of reading the State's mind.  It's a matter of looking at the evidence to see if the State, out of its own mouth, has shared its thoughts on the subject.

The facts of the case are sobering ...

Mrs. Ramirez was driving on US 271 in Upshur County in 2004. She hit a spot of the highway that had standing water.  She hydroplaned into the Anderson vehicle.  Mrs. Ramirez was killed.  Anderson and another were hurt.  All sued TxDOT.  In 2006.  Without giving written notice within six months of the wreck.

The plaintiffs relied on the testimony of the DPS Trooper who investigated the wreck and was based in that area.  The Trooper said that that section of the road always puddled up.  Every time it rained, DPS would start heading that way because the chances of a wreck were high.

The Trooper had told the local TxDOT officials about this stretch of road before the wreck.  To prove his earlier point, the Trooper went back to TxDOT after the Ramirez wreck and told them that, in his view, the fatality was the result of the highway's condition.

Is that "actual notice"?  It depends on whether TxDOT believed the Trooper.  And when.

TxDOT did get around to investigating and repairing this stretch of road.  But not until more than six months after the Ramirez wreck.

Justices Worthen and Hoyle concluded that if TxDOT's decision to repair showed awareness of fault (and even that decision was set in motion by the Trooper's complaint) that decision wasn't made within six months.  So no "actual notice" as defined by TCDJ v. Simons.

Justice Griffith, dissenting, figures that the decision to repair "relates back" (my words, not his) to the statements by the Trooper. Consequently, the State had "actual notice" within six months.

 

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Triple SSS Aviation v. Adkison (Published Memo):  Adkison, a Rusk County lawyer, sued in Rusk County to collect the escrow when a deal to sell his 1981 Cessna fell through. 

The buyer was a Delware company headquartered in Michigan who when through a broker in Missouri and an aircraft title company in Oklahoma.  The buyer was not authorized to do business in Texas, had never done business in Texas, had no office, mailbox, or employees in Texas, didn't manufacture a product that could enter the stream of commerce in Texas, didn't advertise in Texas, had no clientele in Texas, had never solicited business in Texas, and didn't maintain an internet website that could be viewed by a Texas resident. 

There was a written agreement concerning the sale of the airplane.  The agreement called for a $50,000 escrow.  It also provided that agreement would be construed under the laws of the State of Michigan.  While the choice-of-law clause isn't controlling, it does tip the scales towards it being unfair to drag Triple SSS to Texas.

Apparently, the only contacts with Texas were a couple of phone calls between Adkison and the officers of the buyer.  That being said, there were no face-to-face meetings, and the bulk of the negotiations were conducted through the Missouri broker.

When test pilots push their planes beyond the performance envelope, they crash and burn.  Adkison's argument based on the phone call exceed the jurisdictional envelope, with similar results.  But, like Chuck Yeager at the end of The Right Stuff, I imagine he's OK.

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Fuller v. State (Unpublished Memo): When an accused molester has been cut off from his own grandchildren, asking the jury to “draw inferences from that” gets the prosecutor’s point across without creating reversible error.

Sexual assault of a minor. Sixteen year old is assaulted by her father’s roommate in a vehicle. Roommate appeals on grounds that it’s “he said, she said” and the circumstances of when she first told family and friends of the assault make you wonder if the assault even happened. State offered the testimony of an expert who said that delayed reporting is common, especially when the teenager is still under the same roof as the offender. Roommate’s argument fails on both legal and factual sufficiency. Nothing unusual in that result.

What’s more interesting is the jury argument issue.

Apparently, father and roommate were older. Father was recovering from open heart surgery. That’s why Roommate was driving the child around. That’s also one of the reasons why the victim didn’t want to tell her father -- she didn't want to "stress him out" as he recovered from surgery.

Roomate had shown a picture to the victim of what appeared to be an eighteen year-old girl, describing the girl in the picture as his “granddaughter."  Truth be told, the girl in the picture was not his granddaughter.  In fact, Roommate’s oldest grandchild was eleven.  And Roommate had been cut off from his daughter and grandchildren for six years or more.

In closing argument, the State urged the jury to “draw inferences from that.” Roommate objected. Trial court sustained the objection, but refused to instruct the jury to disregard or to grant a mistrial.

The standard for reversible jury argument is whether it is “extreme, manifestly improper, injects new and harmful facts into [the] case or violates a mandatory statutory provision and is thus so inflammatory that its prejudicial effect cannot reasonably be cured by [a] judicial instruction to disregard [the] argument.”

The Tyler court stated that “[a]nalyzing the statements at issue in the context of the entire jury argument, we conclude that the prosecutor’s statement was acceptable as a summary of the evidence and asking the jury to make a reasonable deduction from that evidence.” The Court further stated: “the prosecutor’s argument did not inject new or harmful facts into the case.” [emphasis added]

Silence is golden: I guess this boils down to a presumption that the inferences drawn by the jury will be reasonable and permissible. I think it would be entirely permissible for the jury to conclude that: a. Roommate is a liar, b. he had a reason to lie to the victim, and c. that reason was to “facilitate” the crime -- why would you lie about something as creepy as having a granddaughter you really don’t unless you were up to no good. On the other hand, what if the jury presumed that d. Roommate is an all-around bad actor, and e. Roommate had probably molested his own daughter, and perhaps even his own grandchildren? Maybe I’m too cynical, but that’s certainly a possibility in my mind. Also in my mind: This case would have turned out differently if the prosecutor had put words to that speculation. But he didn’t. His silence made those points for him, without risking reversible argument.

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