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

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

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

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

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

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

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

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

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

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

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

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City of Athens v. MacAvoy (Published): An Athens PD officer was sleeping on the job -- with a married woman.  The husband finds out, and files a complaint with the Chief of Police  This sets off a jurisdictional "Who's on First?" of police officer discipline.

The Chief placed the officer on indefinite suspension.  Texas Local Government Code Chapter 143 gives officers a right to appeal discipline actions to an independent examiner.  The officer appeals.  He says the suspension was improper because, under Texas Government Code Chapter 614, he should have been given a copy of the husband's complaint before he was suspended.  The 143 examiner agrees with the officer, and reverses the suspension.

The City of Athens appeals the examiner's decision by suing.  The City contends that the 143 examiner didn't have jurisdiction to apply 614.  The trial court held that it (the trial court) did not have jurisdiction because Chapter 143 makes the examiner's decision final, unless the examiner lacked jurisdiction.

The Tyler court says: 

1. Look into the City's allegations.  Maybe 614 is beyond a 143 examiner's authority to apply, maybe it isn't.  Either way, the City's pleadings raise the question.  The trial court jumped the gun by dismissing the case.  For now, the trial court has jurisdiction to consider the question.  After considering the matter, it may turn out that the The City is wrong, in which case the trial court will not have jurisdiction.  But the City may be right, in which case the trial court will have jurisdiction.  Case remanded so the trial court can figure it out.

2. Don't get sucked into another jurisidctional merry-go-round.  Let's say that the 143 examiner does have authority to apply 164. There are occasions when an examiner's application of a statute is so hare-brained that the application is outside of the examiner's authority.  "Don't go there", says the Tyler court (not in so many words, of course).  The City complains that, even if 614 applies, the Chief himself qualifies as a "complainant" and thus the officer was given the required pre-suspension complaint.  The examiner figured that the complaint that 614 is about is the husband's.  That's not exactly a hare-brained conclusion.  It may still be wrong, of course.  If the Tyler court were deciding the issue itself, it might side with the City.  But the point is that Chapter 143 gives examiners a wide degree of latitude in interpreting statutes within their jurisidiction to apply.  This interpretation is within that latitude.

So it come back to: Is the application of a provision in Chapter 614 within the jurisdiction of a Chapter 143 examiner?  On this front, as if getting into the middle of a marriage isn't bad enough, the officer has stepped into the middle of a feud between the Texas Legislature and the Supreme Court of Texas.

The City argues that the old version of 614 is limited to certain kinds of officers, and doesn't apply to this officer.  The officer counters, "So what?"  There's a new version of the statute and a slight change in the wording makes it look like he's now protected by 614.  The City responds: Yes, but when the Texas Legislature passed the new statute, they did not intend for the new statute to change the law spelled out by the old one.

And that, dear readers, is the fued discussed in the post entitled Texas Legislature/Supreme Court of Texas Showdown!

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

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

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

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

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

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

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

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

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

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

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

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

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

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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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Home State County Mutual Ins. Co. v. Horn as assignee of Rowe, administrator of the Estate of Hulett (Published Memo): Settlement demands and Stowers liability must expressly match up.  Horn didn't expressly offer a release of Home State's insured.  The trial court imposed Stowers liability via a summary judgment for Horn.  The Tyler court reverses, and renders judgment for Home State on their competing summary judgment motion (which had been denied by the trial court).

Horn was a passenger in a car Hulett was driving. There was a wreck. Hulett was killed, Horn severely injured. The car belonged to Hulett's sister, Berry.

Horn's counsel sent a settlement demand within policy limits to Home State. The letter referred to Berry as Home State's "insured" and Hulett as Home State's "driver."

Home State decided settlement was a good idea, but didn't meet the deadline in the letter.

Horn's counsel gets Rowe appointed administrator of Hulett's estate. Horn then sues the estate, and obtains a verdict in excess of $10 million.

That's not Home State's problem. The Tyler court agrees that the sensible thing for both Horn's counsel and Home State would have been to strike a settlement that would have resulted in everyone getting a release. In fact, a former adjuster for Home State gave testimony that releases for both Berry and Hulett's estate were at play in the post-demand discussions. But there's nothinig in the record that those discussions produced a define offer to fully release Hulett's estate for a sum within policy limits. So it is the express language of the initial demand letter that controls. And that letter referred to Hulett as the "driver" not the "insured."

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

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

Barnes got three years, probated to ten.

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

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

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

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

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

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

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

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

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

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Palestine Herald Press v. Zimmer (Published): High school football coach's defamation suit dismissed because a column calling his end-of-game victory dance unsportsmanlike and "obscene" was not a matter subject to "objective verification" and hence, not actionable.

I don't know if I'd be able to recognize the place if East Texans ever stopped being a little crazy about their high school football.  Fear not.  Craziness still reigns.

Jacksonville and Palestine have a long rivalry.  In 2006, the game was in Palestine.  The home crowd's hearts were broken when, down by two, their Wildcats' last second field goal attempt was blocked.  Naturally, the visiting Jacksonville Indians erupted in jubilation.  Including the D-Coordinator, who (in the words of the decision)  ...

ran onto the field with his right arm overhead ... leapt into one of his players' arms near the middle of the field between the twenty and thirty yard lines ... [then, after the player let him go] turned generally toward the Palestine team's sideline as he pumped his right fist in the air once ... then raised both fists to the side of his head, and abruptly thrust his arms downward to his hips three times while slightly bending his knees and sidestepping toward the thirty yard line ... [all the while] yelling with elevated excitement as he motioned ... then ....

There was a little more, but you get the idea.

The sports columnist for the defeated home team took umbrage.  He wrote a column calling out the coach.  The coach could have blown off the column.  Or he could have issued a statement that he was caught up in the moment and didn't intend to offend.  Instead, the coach sued.  The suit went nowhere because the columnist was entitled to express his opinion. 

As any fan of NBC"s Friday Night Lights would tell you, Coach Taylor (played by Kyle Chandler and pictured above) wouldn't have done the dance.  And wouldn't have sued.

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In the matter of RR (Published Memo): Juvenile conviction for negligent homicide affirmed.  A fourteen year old was driving two of his friends in his dad's Suburban at high speed along a dirt road in stormy conditions.  He lost control and hit a tree.  One of the driver's friends was killed.  They had gotten bored at the driver's dad's house, and were on their way to the driver's mom's house to get a Sony Playstation.

RR challenges the State's petition for failure to state an offense, failure to meet the Family Code's standards of specificity, and failure to meet the "particularity" threshold needed to satisfy due process in juvenile cases.  All of these are denied.

RR also contended that this was just a plain and simple accident, not criminally negligent homicide.  Basically, RR argues the reasonableness of his speed.  There were some pieces of evidence that could be construed to get the speed down into a more reasonable range.  The friend that survived testified that he saw the Suburban's speedometer, and it read 65 m.p.h.,  He admitted, however, that the vehicle was skidding at that point, and the freely spinning wheels may have caused a higher reading than the vehicle's actual speed.  Likewise, the Trooper who investigated the wreck admitted that he didn't do a precise speed workup from the length of the skid marks, etc.

The Tyler court doesn't get into the speed debate.  The Tyler court begins by observing that RR didn't have a license, and shouldn't have been driving at any speed.  And, as to speed, the evidence may not have established it to the exact mph, but it did establish that RR was driving too fast for a wet dirt road.  That's enough to support the trial court's judgment.  RR was placed on probation until he turns 18.

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In re Sames (Published Memo):  An attorney's effort to get two attorney-members of the District 2B Grievance Committee disqualified was denied a hearing by the trial court. On mandamus, the Tyler court rules that the trial court had discretion to deny the hearing.  There was no point in the trial court hearing a motion that was doomed to failure.  The attorney had filed a disqualification motion based on Tex. R. Civ. P. 18a, which deals with judges, instead of Texas Disciplinary Rule 2.06, which deals with the disqualification of grievance panelists. 

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

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

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

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Cullum v. State (Unpublished Memo): DWI conviction appealed on grounds that the officer had no reason to make a stop in the first place.  In a lack of situational awareness, Cullum peeled out of a Longview intersection at 11:30 p.m., squealing his tires for three seconds.  The officer (whose testimony was unrefuted) was back in traffic at the intersection.  He didn't have a clear look at the car, but he could hear it just fine.  The officer believed that the Ford Mustang was fast out of the gate on purpose.  Apparently, there's a law against that.  "Improper start from a parked position." Tex. Trans. Code Section 545.402.  The officer tracked Cullum down.  Once the officer had Cullum pulled over, he discovered that Cullum was DWI.  The Tyler court affirmed.  They probably would have affirmed even if Cullum had been driving a tan 1999 Camry.  OK, no they wouldn't have.  I used to drive one, Ed-style.  You can't squeal the tires.

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Gipson v. State (Unpublished Memo):  This is the companion piece to the Skinner case.  Gipson was convicted of helping Skinner and Skinner's common-law wife steal copper in Angelina County.  Gipson argues that the circumstances and the testimony of his accomplices don't add up to evidence that he knew the copper was stolen.  The Tyler court thinks they do.  Especially in light of Gipson's story to police.  Though he lives in Lufkin, Gipson told police that he was in Houston on the morning of the crime when Skinner just happened to look him up for help unloading the truckload of copper.  The problem with that story is that, at the early hour Gipson said he was being picked up, video at the Angelina County recycling plant showed two men stealing the copper.  In the words of the Tyler court: "The jury could have reasonably concluded that Skinner and the copper could not be in two places at the same time."

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

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

Necessary, Essential & Harm: Disqualification is a severe remedy. The party seeking disqualification must meet an "exacting standard" and show "with specificity" one or more violations of the Disciplinary Rules. The rule at issue is Tex. Disciplinary R. Prof'l Conduct 3.08(a) "Lawyer as Witness." But just showing a violation of Rule 3.08(a) wouldn't be enough. Caselaw holds that Rule 3.08(a) should rarely be used to disqualify. The party seeking disqualification must show that the attorney's testimony is a.) necessary for b.) an essential element of the opponent's case, and that allowing the attorney to also serve as a witness would cause c.) actual prejudice or harm.

The Tyler court held that there would be no harm from having the attorney also serve as a witness. The record before the Tyler court included the deposition of the husband, as well as live testimony at the disqualification hearing by the attorney and the legal assistant.  But, in the words of the Tyler court: "Nothing in the testimony presented pertains to whether [the wife] would suffer actual prejudice."

The wife argued that there was harm in the fact that the attorney had "invaded" the house, and harm in the fact that the attorney and the husband then withheld the documents they got from the house. If that's harm, it's not harm stemming from the attorney also serving as witness. It's unrelated harm. The wife also tried to make an issue of the fact that the husband's attorney, some time back, had jointly represented the husband and wife on an matter unrelated to the divorce. The key part being "unrelated to the divorce."

The husband's counsel should not have been disqualified.

The husband's attorney is J. Bennett White. I'm guessing that East Texas family law practitioners will make sure that temporary orders are in place, and perhaps even include a provision regarding this scenario.  I've also got a guess about what those provisions will be called.

Update: On June 5, 2008, the wife filed a mandamus petition in the Texas Supreme Court.  She also filed a motion to stay, presumably so the trial court would not proceed to trial on this case with Mr. White at the helm for the husband.  As of June 11, there's been no ruling on either the mandamus or the motion to stay.

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Freeman v. State (Unpublished Memo): Nothing unusual in the basics: Freeman appeals on grounds that he didn't personally hand the drugs to the informant.  Instead, the drug dealer sat in the car as his runner delivered the drug at Wal-Mart and Denny's in Tyler.  The informant testified that he called Freeman to set up the transactions.  The transactions were videotaped.  Freeman didn't exactly look surprised when the runner left his car with cocaine and came back to him with cash.  Freeman "constructively" dealt the cocaine.  Conviction affirmed.

The interesting part: "No harm, no foul" applies to inadequate notice of extraneous convictions.  Under Texas Rule of Evidence 404(b), the State must give the defendant notice of prior bad acts that may be used at trial. If the defendant says he didn't get adequate notice, the only question at trial is whether the State met the requirements of Rule 404(b).  That's at trial.  On appeal, the defendant must do more than show a technical violation of 404(b).  He must show that the violation caused him harm.

The Tyler court decides Freeman on the basis of "no harm."  It came down to that because the Tyler court had concerns about the one-sentence notice the State gave Freeman.

Update: This case has drawn the attention of a law professor in Chicago, Colin Miller.  If it were up to Professor Miller, he would have reversed.

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Stoker v. Stoker (Published Memo): Under the abuse of discretion standard, a court of appeals defers to the trial court's assesment of the evidence.  But there has to be evidence.  In this post-divorce receivership case, there was no evidence supporting the appointment of a receiver to sell the former marital residence.  The only thing in the record was argument of counsel.  Therefore it was abuse of discretion to appoint a receiver.

OK then, what evidence is needed to support the appointment of a receiver?

Good question.

A trial court's authority to appoint a receiver stems from Texas Family Code, section 6.502(a)(5).  But, while that statute gives the authority, it doesn't say when it should be exercised.  So the courts have tried to "extrapolate" what proof should be required.  They haven't come up with an agreed list of factors yet.  Instead it's just a series of ad hoc decisions.  Most courts tend to agree that you need to show that: 1.) some sort of harm that will come to the property (or its value) if a receiver isn't appointed, and 2.) a less harsh remedy would not be able to prevent that harm.

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Adair v. State (Unpublished Memo):  Put this one in the "no harm, no foul" category.  Adair was convicted of third degree felony assault of a public servant.  The public servant was a juvenile correctional officer with the Crockett State School.  The officer had tried to search Adair for contraband, and Adair had grabbed her wrist, causing injury.  Adair contends that he didn't intend injury.

Normally, assault on a public servant has a 2-10 year punishment range.  Adair got a 15 year sentence under Section 12.42 because of a juvenile adjudication that he had sexually assaulted a child under 14 years of age.

Adair's only ground on appeal is ineffective assistance of counsel.  On that front, his trial counsel didn't object to the admission of the sexual assault.  Nor did trial counsel object to Adair's 300-or-so disciplinary incidents in the Crockett State School.  In addition, his trial counsel did not object to a jury charge that allowed the jury to convict based on the lower "nature of the conduct" standard, nor did trial counsel request a proper charge on the higher "result of the conduct" standard.

Under the Strickland test, the Tyler court presumes that Adair's trial counsel had good strategic reasons for those inactions.  What might those reasons be?  The Tyler court doesn't say.  Even so, it's presumed that Adair got effective counsel.  At first blush, a non-lawyer might find this non-sensical.

The bottom line on this case, however, is two pronged.  First, even with a "result of the conduct" charge, a jury can consider recklessness.  The jury could have found that Adair recklessly brought about the result.   And the jury could have reached that result without evidence of the prior sexual assault or the 300 incidents.  Second, though the sexual assault adjudication might not have been admissible at the guilt/innocence phase, it was fair game for purposes of enhancing the sentence.  All-in-all, Adair had the burden to show that the result would have been different if the things he complains about had been changed.  He didn't carry that burden.  No harm, no foul.

To understand the logic behind cases like Adair's, see presentations on Strickland by retired Justice Sandra Day O'Connor and State Senator Rodney Ellis.  Of all her decisions, Justice O'Connor considers Strickland one of the two she'll be most remembered for.

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PPC Transport v. Metcalf (Published): It's 2:00 a.m..  A semi trying to find a Pilgrim's Pride plant in Shelby County misses the turnoff by a little, backs up, and waits to make a left turn.  The driver didn't know it, but when he backed up, he put part of his trailer into the other lane.  Sure enough, a pickup is coming.  The driver of the pickup sees the tractor, but not the trailer.  Pickup hits the trailer.  Pickup driver and his friends were injured, and sue.

The pickup driver and his friends had been drinking for a while before the wreck.  The driver himself had 8-10 beers.  He was speeding at the time of the wreck.

The transportation company says that the pickup driver could have swerved around the trailer had he been sober and driving within the speed limit.

The trial court excluded the drinking and speeding on Tex. R. Evid. 403 grounds.  The jury put all the responsibility on the transportation company.

The Tyler court reversed and remanded.  Their 403 "probative value versus unfair prejudice" analysis accorded the drinking high probative value and low unfair prejudice.  It would be interesting to know how the court would treat a DWI conviction (apparently, there wasn't one in this case).  In any event, the opinion has some good quotes if you need a case on the known dangers of drinking and driving.

There was also an interesting twist on the offer of proof ...

The pickup driver and his friends argued that the transportation company waived error by combining the drinking and speeding evidence into a single offer of proof.  The Tyler court said that, even though there was a single offer of proof, they were able to figure out that two issues were involved, and the trial court surely did as well.  That preserves error.

On a closely contested case, it might be advisable to split up offers of proof.  Failing that, be sure to make the multiple issues readily distinguishable.

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Roberson v. State (Unpublished Memo): Roberson plead guilty to aggravated sexual assault of a child.  He requested a jury trial on punishment.  The jury sentenced him to 35 years.  Roberson appeals on grounds that the sentence is not supported by the evidence.

The statutory punishment range for the offense is 5 to 99 years, or life.  Thirty-five years is within that range.  The "general rule" is that sentences within the permissible range will not be disturbed on appeal.  In particular, sentences within the permissible range cannot be appealed on sufficiency of the evidence grounds.  Appeal dismissed.

See the Hickman case of March 31.

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Hodges v. State (Memorandum, Unpublished): Hodges went into his neighbor's house, chased her out, and then assaulted her.  He was convicted of burglary of a habitation with intent to commit assault, a first degree felony.

Hodges appeals on two grounds.  First, he brings legal and factual sufficiency challenges.  Among other things, he contends that he had no intent to assault when he entered the house.  If he ever had that intent, it formed after the neighbor was out of her house.  The neighbor, of course, tells a different story.  According to her, the only reason she left her house was because Hodges was in it and obviously meant her harm. A classic "he said, she  said."  The "she said" is enough evidence (both factually and legally) to support the conviction.

Now for the Good News/Bad News.  Let's take the bad first.  Hodges had some previous convictions.  Under Section 12.42(d) of the Texas Penal Code, the jury found two enhancement paragraphs to be "true."  That supports a life sentence.  The good? Since punishment was assessed under Section 12.42(d), and Section 12.42(d) doesn't provide for fines, the $10,000 fine assessed by the trial court was set aside. 

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Skinner v. State (Unpublished Memo): A jury acquitted Skinner of stealing copper from an Angelina County recycling center.  But they convicted him of theft for trying to sell the stolen copper.  Skinner says the acquittal on the burglary charge means that he shouldn't have been tried in Angelina County on the theft charge.  True enough, the attempted sale of the copper was in Houston.  But Skinner took possession of the stolen copper in Angelina County.  Venue was proper.  Conviction affirmed. 

Copper theft case. Security video at an Angelina County recycling center caught two people getting out of a rented moving van at 4 a.m. and loading it with copper. The van was rented to Skinner’s common-law wife. Around 5 a.m., Skinner, and a friend picked up Skinner’s wife in the van. They headed for Houston. By 9:00 a.m., they arrived, and set about trying to sell the copper. The first facility they tried refused to buy the copper -- something just didn’t seem right. The manager of the second facility was on the phone with the Angelina County recycling center getting a “heads up” when Skinner arrived. Skinner was arrested on the spot. Skinner was charged with burglary of the recycling center and theft of the copper.

The key fact in the case is that Skinner’s wife lived in Angelina County. While the jury wasn’t convinced that Skinner was one of the two people on the security video, they were convinced that Skinner was in the van in Angelina County, there was stolen copper in the van, and Skinner wasn’t exactly bringing it back to the Angelina County recycling center.

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Patrick v. State (Unpublished Memo): Patrick took ten years of deferred adjudication for burglary of a habitation. Then she went out and violated the terms of her probation up, down and sideways. 

When the court threw the book at her at the revocation hearing (18 years) she griped that trial court didn’t take the time to list all of her rights and ask if she was voluntarily waiving them (e.g. to remain silent, to have a hearing, to bring witnesses on her behalf, and to cross examine the State’s witnesses).

All of those waivers took place at the time she made her deferred adjudication plea. There’s nothing voluntary on her part about probation revocation. Therefore the trial court didn’t need to ask about her rights.

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Avila v. State (Published): In some Spanish-speaking countries, a “notario” is a legal advocate. Playing on this, some notaries in Texas (and elsewhere) have taken up providing immigration and other legal advice. Two problems: 1. the notary laws in Texas have a general prohibition against providing legal advice, and 2. only attorneys and specially-qualified representatives of non-profit agencies may represent petitioners before the Immigration and Naturalization Service (now Citizenship and Immigration Services).

In 2003, the Texas AG’s office announced that it was going after notarios. This case is a successful product of that well-publicized effort.

The AG sued a husband and wife “notario” team in Tyler for the unauthorized practice of law and deceptive trade practices, seeking civil damages and an injunction.

At trial, the husband and wife objected to the unauthorized practice of law questions on grounds that they were duplicative, and there was no evidence to support their submission to the jury. On appeal, they complained that the questions were immaterial, and constituted a comment on the weight of the evidence.

The Tyler court held that the charge error complaints were waived because the complaints at trial didn’t match the complaints on appeal.

On other issues raised in this appeal, the Tyler court held that ...

1. The “no harm, no foul” approach isn’t permitted under the DTPA provisions concerning impermissible conduct by notaries.  Proof of actual harm not required to prove a violation.

2. A computer-generated summary created in the normal course of business is itself a business record, and the underlying records need not be produced for inspection under TEX. R. EVID. 1006.

3. Restitution awards under the DTPA provisions at issue are not subject to a two-year limitations period.

4. An injunction that prevented the defendants from transferring any money out of Smith County would prevent them from even paying their bills, and was hence broader than needed to achieve the purpose of the injunction: preventing future violations of the DTPA.

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Green v. State (Unpublished Memo): In aggravated sexual assault of a child case, the defendant put on evidence that he was a virtuous family man and would never do and had never done anything of the sort. That opened the door for his step-grandchildren to testify that he did something of the sort to them. The defendant was an official of the Athens LDS stake. He was convicted of repeatedly molesting a child in his congregation when the child was 7 to 10 years old.

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State for the Protection and Best Interest of EG (Published): Statements in a civil application to compel an incompetent criminal defendant to take his meds aren’t proof warranting forced medication.

EG was declared incompetent to stand trial on a cocaine possession charge. He was ordered to a mental hospital. In the hospital, he’d do crazy things like snort artificial sugar.

His doctor diagnosed him with schizophrenia, and prescribed several drugs to treat him (and restore his competency to stand trial). EG may be crazy, but he ain’t stupid: he refused to take the meds. (Who didn’t see that one coming?)

So the doctor filed an application under Tex. Health & Safety Code Ann. § 574.106 to compel EG to take the meds. This statute is relatively new.  For an overview, here is the bill analysis from the 79th Texas Legislature in 2005.

The trial court granted the application. The Tyler court of appeals reversed and rendered.

Statements in the doctor’s application were not backed up by testimony. Under the statute, there must be clear and convincing evidence that: 1. the patient doesn’t have the “capacity” to make his own decision about the meds, and 2. the meds are in the patient’s best interest. The factors going into “capacity” are the patient’s ability to: a.) understand the nature and consequence of a proposed treatment, including the benefits, risks, and alternatives to the proposed treatment, and b.) make a decision whether to undergo the proposed treatment. These factors are viewed in light of: i.) the patient’s expressed preferences regarding treatment with psychoactive medication, ii.) the patient’s religious beliefs, iii.) the risks and benefits, from the perspective of the patient, of taking psychoactive medication, iv.) the consequences to the patient if the psychoactive medication is not administered, v.) the prognosis for the patient if the patient is treated with psychoactive medication, and vi.) alternatives to treatment with psychoactive medication.

That’s a lot of i’s to dot and t’s to cross. Perhaps the doctor could have done that here. The problem was that the doctor made the right assertions in the application, but didn’t touch all the bases in his testimony. In particular, the doctor explained neither EG’s illness, nor how (untreated) the illness robs his capacity to make decisions about medication, nor how treatment would be in EG’s best interest. Since the court found there was “no evidence” on these elements of the State’s burden of proof, there was no need to get into the finer points of the legal sufficiency standard of review, and certainly no need to reach the factual sufficiency question.

Forcing incompetent criminal defendants to restore their competency with meds is a very knotty and very hot issue. Take, for example, the Elizabeth Smart case. The Utah Supreme Court is currently (March, 2008) considering the emergency motion of one of the defendants, Wanda Barzee. Like EG, Barzee, was declared incompetent to stand trial, and also like EG, Barzee refuses to take psychiatric medications. The United States Supreme Court issued a decision in this area in 2003, Sell v. United States, 539 U.S. 166, 177 (2003)(holding that a person has a “’significant’ constitutionally protected liberty interest in avoiding an unwanted administration of anti-psychotic drugs.”)

And then there’s the related issue of: “How much wiggle room is there between criminal ‘competency’ to stand trial and civil ‘capacity’ to refuse medication?”

With Rusk State Hospital in the Tyler court's jurisdiction, the Tyler court is, and will be, on the front lines of this issue.

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Toliver v. State (Unpublished Memo): First degree felony crack-dealing conviction resulting in life sentence is affirmed because inadmissible prior crack deals either weren’t objected to, or objections only went to one type of evidence (such as video) when the deal shown on the video was the subject of live testimony. 

Toliver was a crack dealer in Tyler. Wallace was a crack addict turned informant for Tyler PD Officer Tekell. Wallace purchased crack from Toliver three times. Once in a hotel, then twice in Toliver’s home.

The video of the last transaction didn’t show drugs changing hands, but the activities shown on the video certainly didn’t rule out a drug transaction. In fact, both Wallace and Officer Tekell testified that Wallace went in to Toliver’s house with nothing but $175 in his pocket (and, of course, a wire), and came back out without the money, but with more than 4 grams of crack.

Toliver was tried for the final transaction, presumably because it was the only one that exceeded 4 grams – a first degree felony. Evidence of all three transactions came in, as well as evidence from transactions not involving Wallace.

Toliver objected based on Tex. R. Evid. 404(b) and 403.  Toliver didn’t contest motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In short, Toliver was where the State said he was, and he was the sort of fellow who might well trade in drugs.

Toliver’s only defense was that he didn’t sell these drugs at this particular time to Wallace.  Because Toliver narrowed his defenses, he also narrowed (in fact, removed) the State’s basis for putting on evidence of the prior transactions. They’re extraneous and inadmissible.

Even so, Toliver’s appeal went nowhere. For the most part, Toliver’s objections were waived because they were made after the evidence was already admitted. When he did make timely objections, the error he objected to was harmless because the objection went to just one form of evidence about a transaction (e.g., a videotape) when the same transaction was admitted in another form (e.g., live testimony).

The evidence on the “record as a whole” was legally and factually sufficient to convict Toliver. That being said, the Tyler court’s discussion of the record does not go into the extraneous offenses. Instead, the discussion is limited to the transaction in the indictment. The jury was entitled to believe Wallace and Officer Tekell about what happened that day, and (without stating as much) the Tyler court leaves the clear impression that their testimony alone was enough to support the conviction.

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Garcia v. State (Unpublished Memo): Garcia appeals four counts of sexual assault of minors and a single indecency with a child charge.  At trial, Garcia agreed to a jury charge that omitted a statutorily required instruction.  Even though he agreed to that omission at trial, he complains of it on appeal.  His appeal is dismissed because the omission didn't harm him.

The good news for criminal defendants is that they can still appeal certain errors in the charge, even if they agreed to them.  The bad news two fold.  First, such appeals are limited to the omission of statutorily required elements of the charge.  Second, the defendant has to show that the omission caused him "egregious harm."

The jury charge at issue omitted a parole instruction required by Article 37.07 of the Texas Code of Criminal Procedure.  In essence, that instruction tells the jury that the sentences they give aren't hard numbers.  Instead, a combination of "good time" plus time served may result in parole prior to the end of the jury's sentence.  Of course, once jurors hear that, they figure they've got to give somebody 20 years if they want him to serve 10.

That instruction helps the State.  There's no harm to the defendant in leaving it out.  Certainly no egregious harm.  Appeal dismissed.

While the omission didn't hurt Garcia, it didn't help him either.  The jury gave him four life sentences for the things he did to his own grandsons.

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Connor v. State (Unpublished Memo): If there’s one thing worse than drunk dialing, it’s drunk dialing from jail as the conversation is being recorded. It’s just not a good time to threaten your cheating wife.

Nothing remarkable about the case except the facts. Conner objects to the recording as inadmissible and the officer’s testimony as opinion and hearsay. 

The officer's testimony was hearsay.  He didn't hear the conversation live.  A jailer did.  The jailer called the officer to come listen to the recording.  The jailer didn't testify.  The officer did -- based on what he'd heard on the tape.  Connor objected to some of the officer's hearsay, but also let some of it come in without objection.

The officer also offered an inadmissible opinion.  The officer testified that Connor's wife must have been "annoyed" by the call.

"Annoyed" didn't begin to cover it for the wife.  She testified that Connor told her that she "needed to be out of town prior to him being released from jail . . . and he told me that we would talk but it would be with his fist.”  She (sensibly) took that as a threat of serious bodily injury.  That covers anything the officer said and then some.

Unanswered question:  Are routinely recorded jailhouse calls admissible? The Tyler court didn't rule on the admissibility of the tape.  Instead, the Tyler court assumed, "without deciding" that playing the tape for the jury was error.  Error that was made harmless by, among other things, the wife's testimony.

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Arroyo v. State (Published): Two key points in this murder case, and an instance of a defendant curing the State's erroneous questions with his own overly broad efforts to respond.

Citizenship status of witness to a murder is irrelevant: The State’s key witness was a single mother illegal alien. Counsel for Arroyo wanted to cross-examine the witness on her citizenship status.  The State objected and the trial court sustained the objection.  Arroyo’s counsel made a bill, asking the witness if she felt pressured by the State or had been offered benefits by the State. She denied both. Absent testimony to overcome her denials, there is no presumption of pressure or benefits.  In the words of the Tyler court: "We do not understand the city police or the district attorney to play a role in the enforcement of immigration laws, and there is nothing in the record to suggest that the witness was vulnerable to the police because of her immigration status." Consequently, the citizenship status of the witness is irrelevant.

No intrinsic harm from communications behind counsel’s back: Though Arroyo was represented by counsel, the State conveyed a plea offer to him through his sister. In extraordinary circumstances, dismissal of the indictment is a remedy available for the State’s violation of the Sixth Amendment right to counsel. But neither Arroyo nor his sister responded to the State, so there was no proof that the State got information from this approach. Of course, Arroyo might reasonably wonder why the State is going around his counsel, and the Court might wonder what Arroyo wondered. But there was no testimony from Arroyo that the State’s backchannel offer soured his relationship with counsel. The trial court found no harm had come from the “probable” Sixth Amendment violation. The Tyler court affirmed.

Attempts to repair the harm actually worsened it: The State called Arroyo's father as a witness. The father tried to fudge things to protect his son. The State tried to undermine the father's credibility with the usual line of “you’d do anything to protect your kid” questions. But the State brought something else to the table this time: Arroyo's sister was wanted for murder, and the father had refused to volunteer her whereabouts. Under a Tex. R. Evid. 403 analysis, the prejudicial effect of bringing up the sister’s acts far outweighed the less-than-startling testimony that the father wouldn’t give her up. It was error for the trial court to permit questioning on this subject.

But the State had phrased its questions i