Editor’s note: What follows are summaries of state and federal appellate court opinions issued from Jan. 7 to Feb. 21. The list is organized by court and practice area. Names of the cases below are linked to full-text opinions.

Courts of Appeals — Civil

Civil Practice

In Re: Jeffrey Clark
Dallas Court of Appeals
Feb. 14, 2013; No. 05-13-00065-CV

The relator petitions for habeas corpus relating to the trial court’s order of contempt and for commitment. An arrest without a written commitment made for the purpose of enforcing a contempt judgment is an illegal restraint from which the prisoner is entitled to be relieved. Habeas corpus relief is granted.

In Re: Moffitt
Amarillo Court of Appeals
Feb. 20, 2013; No. 07-13-0041-CV

The mandamus petition requests that the court of appeals "compel the Hutchinson County District Judge, and Court Coordinator to Bench Warrant, or hold a Telephonic Conference for Final Hearings." Texas Government Code § 22.221 expressly limits the mandamus jurisdiction of the courts of appeals to writs necessary to enforce the jurisdiction of the court of appeals and writs against specified district or county court judges in the court of appeals district. That portion of relator’s petition for a writ of mandamus directed at the court coordinator is dismissed.

Constitutional Law

Foster v. City of El Paso
El Paso Court of Appeals
Feb. 20, 2013; No. 08-10-00157-CV

The appellant appeals the trial court’s summary judgment in favor of the city of El Paso, stemming from a challenge to the constitutionality of the city’s sexually oriented business ordinance. Because the city’s ordinance is content-neutral, the court applies the four-prong O’Brien test to determine whether it is a constitutional restriction on symbolic speech under the First Amendment and determines it is constitutional. The trial court’s judgment is affirmed.


STR Constructors Ltd. and Arch Insurance Co.
El Paso Court of Appeals
Feb. 20, 2013; No. 08-10-00210-CV

A general contractor and its insurer appeal an adverse judgment in this breach-of-contract case. In a dispute involving a contract, a breaching plaintiff may recover in quantum meruit for the reasonable value of services less any damages suffered by the defendant. The trial court’s judgment is affirmed.

Family Law

Puntarelli v. Peterson
Houston’s 1st Court of Appeals
Feb. 14, 2013; No. 01-11-01120-CV

The appellant challenges the trial court’s division of the parties’ marital estate. The appellee’s identification of unaccounted-for community funds in the appellant’s sole control was sufficient to shift the burden to the appellant to show the fairness of his use of those funds in his control. The trial court’s judgment is affirmed.

Health Law

Creech v. Columbia Medical Center of Las Colinas Subsidiary, et al.
Dallas Court of Appeals
Feb. 13, 2013; No. 05-10-01545-CV

The plaintiffs appeal in this wrongful-death case involving alleged medical malpractice. Like many medical-malpractice cases, this case was in many respects a battle of the experts. The jury decides which expert witnesses to credit. The trial court’s judgment is affirmed.

Estrada v. Mijares
El Paso Court of Appeals
Feb. 20, 2013; No. 08-10-00290-CV

This appeal arises from a medical-malpractice suit against a nurse practitioner and her employer on a theory of vicarious liability. Even if Lunsford could be construed as holding that a nurse’s duty to act according to the applicable standard of care arises from the mere fact that she has a nursing license, such a holding would be contrary to St. John v. Pope, because it would impose a duty on nurses to practice their profession or render services to everyone who asks. The trial court’s judgment is affirmed.

Courts of Appeals — Criminal

Criminal Law

Carrizales v. State
Corpus Christi Court of Appeals
Feb. 21, 2013; No. 13-12-00406-CR

The appellant challenges his conviction for class B misdemeanor criminal mischief. In criminal mischief cases, proof that property has merely been damaged or destroyed is not enough; rather, to establish the corpus delicti of criminal mischief, the state must show that the destruction or damage occurred and that the destruction or damage was intentionally or knowingly caused by a person. The trial court’s judgment is affirmed.

5th U.S. Circuit Court of Appeals


Republic of Ecuador v. Connor
Feb. 13, 2013; No. 12-20122

The Republic of Ecuador seeks discovery from the appellees, John Connor and GSI Environmental, for use in a foreign arbitration against Chevron. Chevron, an intervenor in the district court, benefitted repeatedly by arguing against Ecuador and others that the arbitration is a "foreign or international tribunal." Because Chevron’s previous positions are inconsistent with its current argument, judicial estoppel is appropriate to make discovery under 28 U.S.C. §1782 available to Ecuador. The district court’s order is reversed and remanded.

Banking Law

Priester v. JP Morgan Chase Bank NA
Feb. 13, 2013; No. 12-40032

The appellants’ mortgage agreement was signed at their house in violation of the Texas Constitution. Their suit, seeking that the mortgage holder forfeit all principal and interest, was dismissed on the ground of limitations. A limitations period applies to constitutional infirmities under Texas Constitution Article XVI Section 50(a)(6). The legal injury rule applies to the creation of unconstitutional liens. The judgment of dismissal is affirmed.

Civil Rights

Rogers v. Boatright
Feb. 18, 2013; No. 12-20063

The district court sua sponte dismissed this suit filed in forma pauperis by an inmate alleging that a corrections officer, knowing that the inmate was shackled and without a seatbelt in a prison van’s security cage, acted with deliberate indifference to the inmate’s safety by driving the van recklessly. The allegation that the driver told another officer that other inmates similarly had been injured the prior week and during other incidents, which "happen[] all the time," states more than mere negligence. The district court’s order is affirmed in part, and reversed and remanded.


Tekelec Inc. v. Verint Systems Inc.
Feb. 13, 2013; No. 11-41408

The appellant in this contract dispute made no further payments to the appellee, claiming that the non-accrual clause in a settlement with another party extinguished its obligations to the appellee. The qualifying phrase "or other patent damages" in the non-accrual clause in the settlement indicates that the term "royalties" refers not to the contractually bargained-for payment obligations under the underlying contract, but to the court-ordered "reasonable royalties" that serve as the generally accepted measure of patent damages under 35 U.S.C. §284. The district court’s summary judgment is affirmed.

Criminal Law

United States v. Resendiz-Moreno
Jan. 16, 2013; No. 11-51139

The defendant appeals his sentence imposed by the district court after pleading guilty to illegal re-entry into the United States, arguing that the district court erred in its determination that his prior cruelty to children conviction was a crime of violence. Because the underlying statute does not describe an offense — disjunctively or otherwise — that requires the use of physical force, there is no basis for inquiring into the charging documents. The district court’s sentence is vacated and remanded for resentencing.

United States v. Garza
Feb. 1, 2013; No. 11-10543

The appellant argues that the district court improperly considered his rehabilitative needs in determining the length of his prison sentence in violation of Tapia v. United States. 18 U.S.C. § 3582(a) applies to a revocation sentence. The record makes clear that the appellant’s rehabilitative needs were the dominant factor. Because this is plain error, the sentence is vacated and remanded.

United States v. Kennedy
Feb. 7, 2013; No. 11-60431

The defendants appeal their convictions for offenses related to an alleged scheme to fraudulently obtain mortgage loans. The alleged crimes of wire fraud were complete before the conduct underlying the money laundering counts began; furthermore, the defendants used only profits from the underlying alleged wire fraud crimes to assist them in allegedly committing new crimes of wire fraud. There has been no showing of merger of crimes in these convictions. The district court’s judgment is affirmed.

Smith v. Cain
Feb. 11, 2013; No. 10-30665

This federal habeas appeal arises from a Louisiana state court proceeding. Pinholster‘s restriction does not bar the federal evidentiary hearing conducted in this case because the district court first concluded, solely on the basis of the state court record, that the state courts committed legal error, as required under 28 U.S.C. §2254(d)(1), through the state courts’ unreasonable application of clearly established federal law. Because the petitioner failed to carry his burden of proving that the prosecutor’s race-neutral explanations for striking two black panelists were a pretext for purposeful discrimination, the district court’s judgment is affirmed.

United States v. Moore
Feb. 11, 2013; No. 11-30877

The defendants, two former New Orleans police officers, appeal their convictions and sentences arising from an incident that resulted in a death. The district court’s consideration of the totality of the officer’s involvement in the circumstances leading up to the death of the victim was appropriate to determine which underlying offense should be referenced for purposes of sentencing. The convictions and sentences are affirmed.

United States v. Hernandes
Feb. 15, 2013; No. 11-50669

After the district court denied the appellant a certificate of appealability, he filed a motion for relief from judgment under Federal Rule of Civil Procedure 60(b)(6). The motion consisted entirely of his recapitulated third-party beneficiary conflict of interest argument. The district court denied the motion and a subsequent request for a certificate of appealability. The appellant’s Rule 60(b) motion is a 28 U.S.C. §2255 motion in disguise, and the district court is prohibited from considering the motion. The appeal is dismissed.

United States v. Gonzalez-Garcia
Feb. 15, 2013; No. 11-41365

The district court denied the appellant’s motion to suppress marijuana allegedly found in a house. A violation of the prophylactic Miranda rule does not require suppression of the nontestimonial physical fruits of the suspect’s unwarned but voluntary statements. Consent following an unwarned confession may be voluntary. The judgment of conviction is affirmed.

United States v. Mitchell
Feb. 18, 2013; No. 11-51084

The appellant challenges the revocation of his conditional release under 18 U.S.C. §4243(g). There is no specific threshold or quantum of evidence that requires the district court to order a competency hearing; the presence or absence of mental illness or brain disorder is not dispositive as to competency. The order of revocation is affirmed.

United States v. Heard
Feb. 18, 2013; No. 11-20323

The appellants were convicted of alleged conspiracy to defraud the United States by failing to pay and impeding the IRS’ collection of employment taxes. A defendant may be able to establish substantive unreasonableness due to unwarranted sentence disparity based on a similarly situated defendant’s sentence. However, a mere disparity of sentences among co-defendants does not, alone, constitute an abuse of discretion. The convictions and sentences are affirmed.

United States v. Caudill
Feb. 19, 2013; No. 12-10292

The appellant challenges his conviction for allegedly attempting to persuade, induce, or entice individuals whom he believed were 11 and 13 years old to engage in sexual activity for which a person could be criminally charged under a Texas aggravated sexual assault statute. 18 U.S.C. §2422(b) was intended to capture conduct that indirectly secured a child’s assent to unlawful sexual activity through an adult intermediary. The district court’s judgment of conviction is affirmed.

United States v. Perez-Solis
Feb. 20, 2013; No. 12-40056

The appellant challenges his conviction and sentence for possession with intent to distribute methamphetamine. The government permissibly used financial documents to undermine the appellant’s alibi. The judgment of sentence and conviction are affirmed.

Employment Law

Autry v. Fort Bend Independent School District
Jan. 7, 2013; No. 11-20639

The district court granted summary judgment to a school district in this case alleging race discrimination. The appellant’s deposition testimony is forthright, and though his submissions ultimately prove inadequate to withstand a motion for summary judgment, his Title VII discrimination claim was not frivolous, unreasonable or without foundation. Therefore, the award of attorney fees was an abuse of discretion. The summary judgement is affirmed, and the award of fees is vacated.

Milton v. Texas Department of Criminal Justice
Feb. 8, 2013; No. 12-20034

A former Texas Department of Criminal Justice employee, who is allergic to scented products used in her workplace, appeals the district court’s summary judgment for TDCJ on her Americans with Disabilities Act and Family and Medical Leave Act claims. Although there is ample evidence that the appellant’s condition affects her life activities, conditions that the individual can effectively mitigate do not generally support a disability finding. The district court’s judgment is affirmed.

Gearlds v. Entergy Services Inc.
Feb. 19, 2013; No. 12-60461

The plaintiff appeals from the district court’s dismissal of his suit alleging claims of equitable estoppel and breach of fiduciary duties pursuant to the Employee Retirement Income Security Act. Amara‘s pronouncements about surcharge as a potential remedy under §502(a)(3) should be followed. The district court’s dismissal is affirmed in part, and reversed and remanded.

Government Law

United States v. Renda
Feb. 20, 2013; No. 11-41203

The appellant appeals a judgment holding him personally liable in a suit alleging incomplete and deficient work performed under a government dredging contract. The decision of a contracting officer rendered pursuant to the Contract Disputes Act of 1978 constitutes a claim within the meaning of the Priority Statute, and a debtor’s representative has notice of that claim, necessary to trigger personal liability under the Priority Statute, if he has actual knowledge of its existence but relies on the erroneous advice of counsel as to its validity. The district court’s judgment is affirmed.

Immigration Law

Kariuki v. Tarango
Feb. 21, 2013; No. 12-10174

The appellant sought review of his denied naturalization application. A "hearing de novo" within the meaning of 8 U.S.C. §1421(c) encompasses a Federal Rule of Civil Procedure 56 review on summary judgment. Evidence of the appellant’s alleged bad prior conduct was relevant to ruling on his naturalization application, and the appellant needed to rebut it with sufficiently probative evidence of good present conduct to survive summary judgment. The district court’s summary judgment is affirmed.

Maritime Law

Barker v. Hercules Offshore Inc.
Feb. 1, 2013; No. 12-20150

The appellant witnessed a friend’s death on a drilling rig attached to the Outer Continental Shelf. This suit was properly removed to federal court under the Outer Continental Shelf Lands Act grant of original federal question jurisdiction, regardless of whether maritime law provides the substantive rule of decision, and regardless of the citizenship of the parties. Because the appellant cannot show a genuine issue of material fact with respect to his claims under either Texas or maritime law, the district court’s orders denying remand and granting summary judgment to defendants are affirmed.


Brown v. Illinois Central Railroad Co.
Jan. 28, 2013; No. 11-60654

The appellant sued after he was struck by a train while driving across railroad tracks. The district court award summary judgment to the railroad company. An expert’s testimony that the crossing was "ultrahazardous" is transparently subjective and the district court did not abuse its discretion by excluding his testimony. The district court’s judgment is affirmed.

Trusts and Estates

Curtis v. Brunsting
Jan. 9, 2013; No. 12-20164

The plaintiff contends that, under Marshall, her claims for breach of fiduciary duty against the co-trustees of an inter vivos trust do not implicate the probate exception. Because the assets in a living or inter vivos trust are not property of the estate at the time of the decedent’s death, having been transferred to the trust years before, the trust is not in the custody of the probate court and as such the probate exception is inapplicable to disputes concerning administration of the trust. The district court’s dismissal of the case is reversed and remanded.