Rex Davis

In Springer v. American Zurich Insurance Co., the plaintiff appealed a no-evidence summary judgment granted to the defendant insurer, which upheld a Texas Workers’ Compensation Commission decision denying benefits. Springer alleged she sustained a compensable occupational disease injury and resulting disability from carbon monoxide exposure caused by a defective heater at her workplace. The court affirmed the judgment, holding that Springer failed to file any response to the summary judgment motion and therefore did not produce more than a scintilla of evidence raising a genuine issue of material fact on the elements of a compensable injury or disability. The opinion also rejected related arguments concerning the need for expert causation evidence, the effect of the administrative decision on jury trials, motions for continuance and new trial, and evidentiary rulings, finding no error by the trial court.

labor & employmentprocedure

This case involved a dispute between Acadian Geophysical Services, Inc., a seismic services company, and eleven former employees over an alleged oral profit-sharing agreement. The employees claimed that Acadian's president promised each of them 3.5% of the proceeds from any future sale or merger of the company in exchange for joining the firm and working without initial salary; they sued for breach after Acadian was acquired by PGS in a stock-swap merger, and a jury awarded them damages. On appeal, the Texas Court of Appeals at Waco affirmed the verdict, holding that evidence supported the president's actual or apparent authority to bind the company and that the agreement covered the transaction proceeds. The court rejected Acadian's arguments that the president lacked authority for such an extraordinary commitment and that no proceeds were received by Acadian itself.

business & regulatorylabor & employment

This case involved a dispute over title to a Houston residence owned by the Streicher trust, of which Edward Streicher Rothrock, Jr. was trustee and his children Ed III and Robin were beneficiaries. After Ed Jr. executed a deed conveying the property to RES Leasing & Management Co., Inc., a company owned by his wife Jan, the children sued, claiming the deed had never been validly delivered with intent to transfer ownership. The trial court submitted the delivery question to a jury and entered judgment awarding the children an undivided 50 percent interest each. The appellate court reversed, holding there was no evidence to support the jury's finding that delivery was ineffective; the deed had been handed to Jan with instructions to record it upon Ed Jr.'s death, establishing a contingent conveyance that became operative, and the presumption of delivery was not rebutted by any contrary evidence of intent or purpose.

propertyfamily law

In this mandamus proceeding, TXU sought to disqualify the law firm Waters & Kraus from representing plaintiffs in an asbestos exposure personal injury lawsuit, based on a former legal assistant and attorney who had worked on TXU's defense at its prior firm before joining and then leaving Waters & Kraus. The court held that an irrebuttable presumption of shared confidential information applies to the firm during the attorney's employment there, and that this presumption continues after her departure under Texas Disciplinary Rule 1.09(c) because the representation would likely involve a violation of confidentiality obligations under Rule 1.05. The trial court abused its discretion by denying the disqualification motion, leading the appellate court to conditionally grant the writ ordering the judge to disqualify the firm.

proceduretorts & liability

Jerry Calame filed an inverse condemnation suit against the City of Wortham, and after a bench trial the court entered judgment in Calame's favor on February 13, 2002. The City timely requested findings of fact and conclusions of law but did not file its notice of appeal until August 30, 2002. The appellate rules required the notice to be filed within 90 days after the judgment due to the findings request, making the filing more than 100 days late. The court dismissed the appeal for want of jurisdiction, holding that it could not suspend the appellate rules to extend the deadline for perfecting a civil appeal.

procedure

This case involves the appeal of Tirey Glen Smith's conviction for aggravated sexual assault of a child, specifically challenging the admission of a videotaped interview with the five-year-old victim under the Confrontation Clause. On remand from the Texas Court of Criminal Appeals to reconsider in light of Idaho v. Wright, the Tyler Court of Appeals affirmed the conviction. The court held that the child was unavailable to testify due to emotional distress and avoidance behaviors observed in hearings, and that the videotaped statements bore sufficient indicia of reliability based on consistency across multiple accounts to medical personnel and investigators, the neutral setting of the interview, and corroborative details. The ruling relied on the state statute allowing such recordings when factual issues were fairly explored by a neutral party and found the evidence admissible without live cross-examination.

criminal lawprocedurecivil rights

The case involved Kenneth Lamar Key, who was convicted by a jury of interference with public duties under Texas Penal Code § 38.15 after he refused to obey a police officer's lawful orders during a response to a disturbance call at a residence. The trial court assessed punishment at 180 days in jail (probated) and a $1,000 fine. Key, appearing pro se at trial, appealed on grounds that the evidence was legally and factually insufficient to support the conviction. The court of appeals reviewed testimony from multiple officers describing Key's belligerent conduct, repeated attempts to approach another individual in violation of instructions to remain on the sidewalk, and the officers' efforts to preserve the peace, concluding that the evidence was sufficient to uphold the jury's verdict.

criminal law

Mary Zorn was convicted of terroristic threat, a lesser included offense of retaliation, after a bench trial stemming from her verbal threats to kill her neighbor's wife and children amid an ongoing dispute between the families. She had been indicted for felony retaliation based on those threats but was sentenced to probation after the trial judge found insufficient evidence for the charged offense. Zorn appealed, arguing that terroristic threat cannot qualify as a lesser included offense because it requires proof of intent to place a person in fear of imminent serious bodily injury. The appellate court affirmed, reasoning that the same facts proving retaliation could satisfy the dissimilar intent element of terroristic threat and that the unconditional threat to kill permitted an inference of that intent.

criminal law

The case involved a sixteen-year-old who was charged with intoxicated manslaughter after causing a fatal car accident while driving intoxicated and fleeing police. After the juvenile court certified her as an adult and transferred the case, she pleaded guilty in district court and received a ten-year sentence that was probated. She appealed the discretionary transfer from juvenile court. The appellate court affirmed the conviction, holding that a voluntary guilty plea waives all non-jurisdictional defects, including challenges to the juvenile transfer, because the conviction was independent of any alleged error in the transfer process.

criminal lawprocedure

The case involved Christina Martinez's conviction for capital murder and mandatory life sentence arising from a 1999 robbery conspiracy at Lake Palestine that resulted in the stabbing death of Jeffrey Carrier. Martinez participated in planning and executing the robbery with a group that included discussions of killing the victims but did not personally assault Carrier; she appealed on multiple grounds, including the admission of evidence about her association with the Northside Crips gang. The appellate court reversed and remanded for a new trial, holding that the gang evidence was improperly admitted under evidentiary rules because it was not relevant to proving she should have anticipated a death during the robbery. The court further reasoned that the error was harmful under the applicable standard, as the evidence likely substantially influenced the jury's determination on the foreseeability element required for party liability in the conspiracy.

criminal lawprocedure

In Roberts v. Clark, the Clarks (sellers) sued the Roberts (buyers) for breach of a real estate contract to sell 340 acres for $1.6 million, seeking a declaration that the contract was terminated because the buyers failed to tender payment by the May 1, 2000 deadline. The buyers counterclaimed for specific performance, arguing that the sellers' conduct created fact issues on waiver or estoppel and that summary judgment was improper. The trial court granted the sellers' motion for traditional summary judgment, terminated the contract, and denied the buyers' counterclaim. The court of appeals affirmed, holding that the contract made tender of payment a condition precedent to the sellers' duty to sign and deliver the deed, the buyers did not tender the funds on the required date, and there was no evidence of reliance or material change in position to support the buyers' affirmative defenses.

property

In Gagliardo v. State, the defendant was convicted by a jury of three counts of aggravated sexual assault of a child under fourteen and seven counts of sexual assault of a child under seventeen based on allegations involving repeated sexual contact with a boy over several years starting in 1985. The court affirmed the convictions and sentences on the first three counts but reversed and rendered acquittals on the remaining seven counts. It held that the defendant had waived any statute of limitations defense by not raising it at trial and that the jury charge on limitations was correct under the law at the time of the indictment. For the later counts, the court applied the U.S. Supreme Court's ruling in Carmell v. Texas and found the evidence insufficient because the 1993 amendment to Texas Code of Criminal Procedure Article 38.07, which relaxed corroboration and outcry requirements, could not be applied retroactively without violating ex post facto prohibitions, leaving the uncorroborated testimony inadequate. The court also rejected the claim that evidence on the reversed counts constituted inadmissible extraneous offenses for the affirmed counts.

criminal lawprocedure

Lionel Simpson appealed the trial court's setting of his bond at $600,000 following a remand from a prior opinion that had found a $1 million bond excessive in his capital murder case, for which he had been certified to stand trial as an adult after being a minor at the time of the alleged offense. He argued that the amount was excessive given his lack of financial resources and family ties, and he raised additional complaints about an allegedly unconstitutional bond condition and improper cross-examination during the hearing. The court reviewed the record, which included evidence of Simpson's gang membership in the Southside Crips, letters from jail demonstrating a violent nature and potential flight risk, the severity of the charged offense, and the potential life sentence, and applied the factors in Texas Code of Criminal Procedure article 17.15. Finding no abuse of discretion by the trial court in balancing the defendant's ability to make bail against community safety and other considerations, the appellate court affirmed the $600,000 bond and overruled the remaining issues.

criminal lawprocedure

Deborah Black sued her sister Vivian Jackson and brother-in-law Bruce Jackson, alleging they interfered in her family relationships, conspired to slander and harass her and her daughters, and contributed to her divorce and custody issues in violation of her constitutional rights, the UCCJEA, RFRA, and Texas Family Code provisions on child custody interference. The trial court dismissed both cases with prejudice, finding no jurisdiction, no valid cause of action, and no legal basis for relief. On appeal, the court held that the trial court lacked subject matter jurisdiction over the UCCJEA, RFRA, and certain family code claims and modified those dismissals to without prejudice, but affirmed the with-prejudice dismissal of the constitutional claims and remaining family code claims because they had no arguable basis in law and any error was harmless.

family lawreligious libertycivil rightsprocedure

The case involved a petition for writ of mandamus by East Texas Salt Water Disposal Company challenging a trial court's repeated denials of its motions to strike or withdraw a deemed admission that asbestos material in transite pipe is friable, which arose in a long-running lawsuit where plaintiffs and intervenors alleged negligence, trespass, nuisance, and strict liability based on the company's use of such pipe on their land. The court denied the mandamus petition, holding that the request was barred by laches because the relator had delayed seeking relief for years through multiple hearings, two trials, and several rulings despite calling the admission critical to its defense. The core reasoning was that the delay caused prejudice to the intervenors, who had relied on the admission in preparing for and conducting trials and would face additional discovery and potential inconsistent outcomes if it were withdrawn now.

proceduretorts & liability

In Forrest v. Danielson, the plaintiffs sued several doctors and a hospital for medical malpractice after complications from back surgery involving the implantation and later removal of a pedicle screw and rod system. The trial court dismissed the claims under the Medical Liability and Insurance Improvement Act because the plaintiffs' expert report failed to adequately address the standard of care, breach, and causation for each defendant, and the court denied an extension of time to file a compliant report. The appellate court affirmed the dismissal, holding that the report did not represent a good faith effort to comply with statutory requirements and that the 180-day deadline had long passed, requiring dismissal with prejudice.

healthcareproceduretorts & liability

In Cochran v. State, the appellant appealed the trial court's revocation of his probation for a 1997 intoxication assault conviction, where he had received a ten-year probated sentence. The State alleged multiple probation violations, including failure to complete community service, tampering with a required ignition interlock device, missing monitoring appointments, and alcohol consumption. The appellant claimed ineffective assistance of counsel at the revocation hearing under the Strickland v. Washington standard, arguing deficiencies such as inadequate discovery, failure to secure a witness, and not requesting a separate punishment hearing. The court affirmed the revocation, finding that counsel's performance was not deficient in a way that prejudiced the defense and that the State proved the violations by a preponderance of the evidence, which was sufficient to support the trial court's discretion.

criminal lawprocedure

The case involved Cedrick Washington appealing the revocation of his deferred adjudication probation for the offense of harboring a runaway child, after the trial court found he violated probation terms and sentenced him to one year in prison. Washington argued that the judge had improperly predetermined the maximum punishment in violation of due process rights, citing precedents on sentencing bias. The Court of Appeals of Texas, Tyler, held that Washington waived any such claim by failing to make a timely objection or file a motion to recuse at the trial court level. Relying on Texas Rule of Appellate Procedure 33.1 and recent authority such as Hull v. State, the court concluded that preservation of error was required even for allegations of predetermination. It therefore affirmed the revocation of probation, adjudication of guilt, and sentence imposed.

criminal lawprocedure

The case involved Randy Mark Pool, who filed a pretrial writ of habeas corpus claiming that his prior guilty plea to a misdemeanor violation of a protective order barred prosecution for a felony burglary charge arising from the same October 2000 incident, on double jeopardy grounds under the U.S. and Texas Constitutions. The trial court denied the writ, and the court of appeals affirmed after first confirming jurisdiction because the trial court had reached the merits. The court applied the Blockburger elements test and concluded that the offenses were not the same because the protective order violation required proof of a valid order and family violence by striking with hands, while the burglary charge required proof of unauthorized entry into a habitation with intent to commit or commission of aggravated assault. The court therefore held that the burglary prosecution was not prohibited by double jeopardy.

criminal lawprocedure

In Johnigan v. State, Marcus Johnigan appealed his jury conviction for delivery of a controlled substance, which resulted in a 40-year prison sentence and $5,000 fine, challenging the trial court's denial of his motion to suppress an informant's in-court identification derived from a single driver's license photograph and the admission of items seized during a search warrant execution. The court affirmed the conviction, applying a two-step analysis to the identification issue by first recognizing the single-photo procedure as impermissibly suggestive but then evaluating the totality of circumstances under the five Neil v. Biggers factors to conclude there was no substantial likelihood of irreparable misidentification. On the second issue, the court held that evidence such as guns, crack cocaine, and the defendant's wallet and license was relevant to rebut a misidentification defense and to show control of the premises, and its probative value was not substantially outweighed by unfair prejudice under Texas Rule of Evidence 403.

criminal lawprocedure