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Editor’s note: What follows is a list of opinions issued by the Texas Supreme Court and the Texas Court of Criminal Appeals in their 2004-2005 terms. The list contains summaries of the cases and is organized by practice area. TEXAS SUPREME COURT Administrative Law The Legislature did not intend to prohibit judicial review of contested-case decisions made under Texas Human Resources Code 42.072. Texas Department of Protective and Regulatory Services v. Mega Child Care Inc. 9-3-2004 No. 02-0728 Admiralty Law “Petitioner, the decedent’s employer, complains that there is no evidence that at the time of the accident the decedent was “in the course of his employment,’ as required by the Act, but alternatively, even if there was some evidence to that effect, it was not conclusive, and the jury should therefore have been, but was not, asked to find whether the decedent and his co-employee, who was driving the pickup, were then in the course of their employment. We agree that the jury was not properly charged and therefore reverse and remand the case for a new trial.” Diamond Offshore Management Co. v. Lelaguidry 4-8-2005 No. 02-0884 Appeals In reviewing the legal sufficiency of evidence to support a finding that must be proved by clear and convincing evidence, an appellate court must look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. Southwestern Bell Telephone Co. v. Garza 12-31-2004 No. 01-1142 “The time for filing a notice of accelerated appeal is restarted not by the filing of the motion but by the act of the court. Thus, we conclude that the notice of appeal, filed three days after the signing of the corrected judgment, was timely.” In Re: J.L. 4-8-2005 No. 04-0307 The rules of appellate procedure do not permit post-judgment motions to extend the appellate deadline for filing an accelerated appeal. In Re: K.A.F. 4-8-2005 No. 04-0493 Civil Practice The trial court erroneously admitted hundreds of reports of alleged accidents, almost all of which were hearsay and almost none of which were shown to involve defects such as those alleged here. As the plaintiff’s evidence and arguments at trial focused on the quantity of other accidents rather than the quality of evidence regarding her own, the court discounts her new position on appeal that the improper admission of evidence of other accidents was unimportant. Nissan Motor Co. Ltd. v. Armstrong 8-27-2004 No. 01-0030 The court grants a writ of mandamus to enforce a contractual provision under which the parties agreed that all dispute resolution proceedings, including litigation, would take place in the state of New York. In Re: AIU Insurance Co. 9-3-2004 No. 02-0648 There is no requirement that the default judgment record include the citation and return. Campus Investments Inc. v. Cullever 9-3-2004 No. 03-0819 Failing to file a restricted appeal does not bar a bill of review. Gold v. Gold 9-3-2004 No. 03-0906 The appellant challenges an order certifying a class of its Texas policyholders who seek refunds or dividends from the company’s surplus. In this substituted opinion, the court holds that the trial court failed to perform the rigorous analysis that class certification requires and abused its discretion in certifying the class. State Farm Mutual Automobile Insurance Co. v. Lopez 12-3-2004 No. 01-0540 The trial court did not abuse its discretion in denying the wife’s motion to disqualify her husband’s lawyer-employer. Texas Disciplinary Rule of Professional Conduct 3.08 should not be used tactically to deprive the opposing party of the right to be represented by the lawyer of his or her choice. In Re: Sanders 12-17-2004 No. 04-0243 The appellate court erred when it ordered a class certified before a trial plan was prepared. North American Mortgage Co. v. O’Hara 12-17-2004 No. 02-1050 The plaintiff was entitled to submit the question of service to a jury at trial, and the trial court erred by resolving the matter in a pretrial hearing. Caldwell v. Barnes 12-31-2004 No. 03-0672 The transferring courts had jurisdiction to issue certain interim orders that set trial dates, ordered mediation and set aside a number of default judgments. In Re: U.S. Silica Co. 2-11-2005 No. 04-0270 Either the withdrawal of deemed admissions or the allowance of a late summary-judgment response is proper upon a showing of 1. good cause; and 2. no undue prejudice. Wheeler v. Green 2-11-2005 No. 04-0043 “Many potential jurors have some sort of life experience that might impact their view of a case; we do not ask them to leave their knowledge and experience behind, but only to approach the evidence with an impartial and open mind. The venire member here expressed willingness to do that. Any bias he did express was equivocal at most, which is not grounds for disqualification.” Cortez ex rel Estate of Puentes v. HCCI-Sanantonio Inc. 3-11-2005 No. 04-0181 “The court of appeals held that under [Texas Civil Practice & Remedies Code] section 15.007, a statutory probate court cannot effectuate such a transfer unless venue in the county in which the probate court is located would be proper under section 15.002 of the Civil Practice and Remedies Code. We affirm.” Gonzalez v. Reliant Energy Inc. 3-11-2005 No. 03-0469 “The controlling issue in this case is whether an agreement consenting to venue in Tarrant County and stipulating that all or part of the cause of action arose there should be given effect. Because the record does not reflect that the agreement was withdrawn, it remains in effect based on the record before us.” In Re: Omni Hotels Management Corp. 3-11-2005 No. 04-0140 “Reliant Energy, Inc. seeks a writ of mandamus directing the Hidalgo County statutory probate court to vacate an order purporting to transfer to itself a wrongful death and survival action pending in a Harris County district court. Because venue is improper in Hidalgo County and Reliant has objected, 5B of the Probate Code does not authorize the transfer.” In Re: Reliant Energy Inc. 3-11-2005 No. 02-0700 A district judge had jurisdiction to sign orders in a condemnation case pending in another district court in the same county. Pinnacle Gas Treating Inc. v. Read 3-11-2005 No. 04-0660 “We must decide whether the plaintiff’s motion for new trial, which was granted before the second judgment was signed, operated to extend the appellate timetable. We hold that, because a motion for new trial that is granted cannot assail a later-signed judgment, it did not.” Wilkins v. Methodist Health Care System 3-11-2005 No. 03-0750 Relator was adequately informed of its counsel’s prior representation and knowingly waived any conflict. The trial court is ordered to vacate its order disqualifying the relators’ counsel. In Re: Cerberus Capital Management LP 5-13-2005 No. 04-0732 The mandatory venue provision in Texas Civil Practice & Remedies Code 15.020 is inapplicable because the risk coverage agreement is not a “major transaction.” In Re: Texas Association of School Boards Inc. 5-13-2005 No. 03-1151 In this case concerning overpayments an insurer received for child riders, the trial court did not conduct the rigorous analysis required in Southwestern Refining Co. v. Bernal. National Western Life Insurance Co. v. Rowe 5-13-2005 No. 02-1010 The venire member disagreed with every suggestion that he could not be fair and objective. His answers do not reflect a disqualifying bias. Salahelhafi v. Baker 5-13-2005 No. 04-0926 Under “direct benefits estoppel,” although a nonsignatory’s claim may relate to a contract containing an arbitration provision, that relationship does not, in itself, bind the nonsignatory to the arbitration provision. Instead, a nonsignatory should be compelled to arbitrate a claim only if it seeks, through the claim, to derive a direct benefit from the contract containing the arbitration provision. In Re: Kellogg Brown Root Inc. 5-20-2005 No. 03-1129 The plaintiff’s suit constitutes an impermissible collateral attack on the confirmation order. Browning v. Prostok 5-27-2005 No. 03-0784 To give full effect to the Legislature’s policy decision regarding legislative continuances, the court concludes that a party has no adequate remedy by appeal when a trial court abuses its discretion by denying a motion for legislative continuance. In Re: Ford Motor Co. 5-27-2005 No. 05-0374 A petitioner may not be confined for civil contempt unless he or she has the ability but refuses to perform the conditions for release. In Re: Gawerc 5-27-2005 No. 04-1044 The factors that determine whether the Federal Arbitration Act pre-empts the Texas Arbitration Act are whether 1. the agreement is in writing; 2. it involves interstate commerce; 3. it can withstand scrutiny under traditional contract defenses; and 4. state law affects the enforceability of the agreement. In Re: Nexion Health at Humble Inc. 5-27-2005 No. 04-0360 The court disapproves of those opinions holding that 1. specific jurisdiction is necessarily established by allegations or evidence that a nonresident committed a tort in a telephone call from a Texas number, or that 2. specific jurisdiction turns on whether a defendant’s contacts were tortious rather than the contacts themselves. Michiana Easy Livin’ Country Inc. v. Holten 5-27-2005 No. 04-0016 Even assuming there is a duty of litigants to keep the court and parties apprised of their correct and current address, unless noncompliance was intentional rather than a mistake, due process requires some lesser sanction than trial without notice or an opportunity to be heard. Mathis v. Lockwood 6-17-2005 No. 04-0516 The failure to obtain a pretrial ruling on discovery disputes that exist before commencement of trial constitutes a waiver of any claim for sanctions based on that conduct. Meyer v. Cathey 6-24-2005 No. 03-0938 The trial court abused its discretion by allowing execution to issue before a final judgment had been entered. In Re: Burlington Coat Factory Warehouse of McAllen Inc. 7-1-2005 No. 02-1084 Commercial Law The refiner established as a matter of law that its price was fixed in good faith as defined in the Texas Business & Commerce Code. Shell Oil Co. v. HRN Inc. 8-27-2004 No. 03-0555 The relator’s confinement for failure to pay property taxes constituted imprisonment for a debt in violation of Article 1, 18, of the Texas Constitution; the trial court’s commitment order is void. In Re: Henry 1-14-2005 No. 04-0052 Portions of the Federal Food, Drug and Cosmetic Act regulating nonprescription drugs did not deprive the trial court of subject matter jurisdiction to hear claims regarding the efficacy of certain head-lice remedies. Mills v. Warner Lambert Co. 2-11-2005 No. 04-0043 Constitutional Law A commitment proceeding under the Civil Commitment of Sexually Violent Predators Act is civil, and the appellant received the process he was due under the U.S. and Texas Constitutions. In Re: Commitment of Fisher 5-20-2005 No. 04-0112 Contracts Although in certain cases, courts may consider the title of a contract provision or section to interpret a contract, the greater weight must be given to the operative contractual clauses of the agreement. Enterprise Leasing Co. of Houston v. Barrios 11-12-2004 No. 03-0787 Failure to enforce a contractual agreement requiring the parties to litigate all disputes in Montgomery County, Pa., constitutes a clear abuse of discretion for which there is no adequate remedy by appeal. In Re: Automated Collection Technologies Inc. 12-3-2004 No. 03-0280 The nonpayment of the recited nominal consideration does not preclude enforcement of the parties’ written option agreement. 1464-Eight Ltd. v. Joppich 12-31-2004 No. 03-0109 As neither affidavits nor testimony show that any pharmacy joined the network without an opportunity to read the provider agreement, the pharmacies have not carried their evidentiary burden to raise an affirmative defense to arbitration. In Re: Advancepcs Health LP 4-15-2005 No. 04-0182 The term “equipment-lease agreement” is unambiguous and provides that, while the lessee may give notice at any time during the lease term that it intends to exercise the purchase option, the lessee can actually purchase the vehicles only at the lease’s expiration, which occurs 60 months after the lease term begins. Frost National Bank v. L&F Distributors Ltd. 5-27-2005 No. 04-0074 Election Law By granting a temporary restraining order on two days notice after the election has begun and by setting a temporary injunction hearing the day after the election is over, the district court has essentially made a final, non-appealable adjudication affecting the Associated Republicans of Texas Political Action Committee’s rights to participate in this election, rights that, as ART PAC asserts, implicate its freedom of speech under the U.S. Constitution and the Texas Constitution. In Re: Newton 10-26-2004 No. 04-0953 Employment Law A person need not be totally unable to walk to be disabled under 12102(2)(A) of the Americans With Disabilities Act; she need only be significantly restricted as to the condition, manner or duration of her walking as compared to that of the average person in the general population. Little v. Texas Department of Criminal Justice 10-15-2004 No. 03-0498 The plaintiff did not adduce any evidence to support her claim that her impairment substantially limited her ability to work. Haggar Apparel Co. v. Leal 12-31-2004 No. 02-1182 “Whether the purpose of the requirements [of the Texas Whistleblower Act] is . . . to allow an opportunity for resolution of disputes before going to court, or . . . to deny a court jurisdiction . . . unless the requirements have been satisfied, the purpose is adequately protected by abating a prematurely filed action until the end of the 60-day period,” provided that procedures have been timely initiated and can continue for 60 days or until a final decision is rendered, whichever occurs first. University of Texas Medical Branch at Galveston v. Barrett 3-11-2005 No. 03-0827 There is no evidence to support the jury’s finding that the employer retaliated against the plaintiff for filing a workers’ compensation claim. Haggar Clothing Co. v. Hernandez 5-13-2005 No. 03-0897 The school district did not waive its deadlines if the board of trustees heard some evidence on the plaintiff’s termination. Van Independent School District v. McCarty 5-27-2005 No. 03-1123 The contract language is unambiguous. The sales representative is required to pay back the bonus he received because the sale on which the bonus was based was cancelled. SAS Institute Inc. v. Breitenfeld 7-1-2005 No. 04-1103 Energy Law The temporary cessation of production doctrine applies when there is more than one lessee under a single lease. Ridge Oil Co. v. Guinn Investments Inc. 9-3-2004 No. 02-0599 “Since the adoption of [Texas Securities Act] section 33(A)(2) in 1963, this Court has never reviewed a claim against a seller under that section’s private cause of action for misrepresentations in the sale of securities. The parties and several amici ask us to settle a number of questions that have arisen in the intermediate appellate courts regarding causation and affirmative defenses. But because we find the quitclaim deed here was not a misrepresentation, we must reverse the judgment below and leave those questions for another day.” Geodyne Energy Income Production Partnership I-E v. Newton Corp. 4-8-2005 No. 03-0209 The 30-day notice period sets a deadline for the working interest owner to decide whether to participate in proposed operations. Nothing in the language of the joint operating agreement forbids the operator from commencing work before the end of the notice period. Valence Operating Co. v. Dorsett 5-20-2005 No. 03-0836 Environmental Law The supplier was not an arranger subject to potential liability under the Texas Solid Waste Disposal Act based upon its giving advice regarding waste disposal. R.R. Street Co. Inc. v. Pilgrim Enterprises Inc., et al. 6-10-2005 No. 02-0758 Family Law The court of appeals and the trial court had authority to enforce a final judgment awarding spousal maintenance, while that judgment was pending on appeal and was not superseded. Accordingly, the trial court had jurisdiction to issue the commitment order. In Re: Sheshtawy 12-31-2004 No. 03-0766 Any error in the trial court’s failure to dismiss the termination proceedings based on estoppel was not preserved. In Re: S.A.P. 1-21-2005 No. 04-0473 Because the child lived in Tennessee with his parents for at least six consecutive months immediately before the child-custody proceeding was commenced, Texas is not the child’s home state. Powell v. Earlstover 5-27-2005 No. 03-1154 Government Law The city cannot recover the cost of construction of a substitute street from the Texas Department of Transportation under 203.058(a) of the Texas Transportation Code, the common law of nuisance or Article 1, 17, of the Texas Constitution. Texas Department of Transportation v. City of Sunset Valley 9-24-2004 No. 03-0041 Texas counties possess sufficient indicia of independence that they are not arms of the state for purposes of the 11th Amendment in cases involving claims arising under the federal Fair Labor Standards Act. Hoff v. Nueces County 12-17-2004 No. 03-0607 The evidence is legally sufficient to support the trial court’s determination that a utility company knowingly violated the Water Code by charging its customers unauthorized fees. The Water Code authorizes the attorney general, at the commission’s request, to seek customer refunds in district court to compel compliance with the Water Code’s statutory provisions. Texas Natural Resource Conservation Commission v. Lakeshore Utility Co. Inc. 4-8-2005 No. 02-0988 Health Law A claim for negligent credentialing is a health-care liability claim under the Medical Liability and Insurance Improvement Act. Garland Community Hospital v. Rose 11-5-2004 No. 02-0902 Liability against the professional associations was not foreclosed by a directed verdict in favor of one physician in his individual capacity and the jury’s failure to find the other physician negligent in his individual capacity. Battaglia v. Alexander 5-27-2005 No. 02-0701 An expert witness’ two unsupported statements of opinion are legally insufficient to show that the hospital was consciously indifferent to the risk that the physician’s drug use posed to patients. Romero v. KPH Consolidation Inc. 5-27-2005 No. 03-0497 The plaintiff’s battery and Deceptive Trade Practices Act claims are health-care liability claims. Murphy v. Russell 7-1-2005 No. 02-1101 Insurance Law For purposes of personal injury protection, a “motor vehicle accident” occurs when 1. one or more vehicles are involved with another vehicle, an object or a person; 2. the vehicle is being used, including exit and entry, as a motor vehicle; and 3. a causal connection exists between the vehicle’s use and the injury-producing event. Texas Farm Bureau Mutual Insurance Co. v. Sturrock 8-27-2004 No. 02-0069 From Nov. 4, 1999, 75 days after Republic tendered Mex-Tex partial payment of $145,460, to the date of judgment, Mex-Tex was entitled to the statutory penalty only on the $33,540 difference between the tendered payment and the amount of Mex-Tex’s claim, determined by the trial court to be $179,000. Republic Underwriters Insurance Co. v. Mex-Tex Inc. 11-19-2004 No. 03-0662 “Absent a clear legislative directive, we conclude that suretyship, as historically understood in the insurance and suretyship fields, does not constitute the business of insurance under [Insurance Code] article 21.21.” Dallas Fire Insurance Co. v. Texas Contractors Surety and Casualty Agency 12-17-2004 No. 04-0215 An insurer has a right to reimbursement when an insured has demanded that its insurer accept a settlement offer that is within policy limits, or when an insured expressly agrees that the settlement offer should be accepted. Excess Underwriters at Lloyd’s, London v. Frank’s Casing Crew & Rental Tools Inc. 5-27-2005 No. 02-0730 Legal Profession Legislative immunity shields the attorney from liability for any conflict of interest created by legitimate legislative functions undertaken in connection with his position as a city councilman. Joe v. Two Thirty Nine Joint Venture 9-3-2004 No. 02-0218 Probate The El Paso County probate court erred in transferring a wrongful-death action from a Tarrant County district court to itself under 5B of the Probate Code. In Re: Terex Corp. 3-11-2005 No. 04-0015 The Travis County probate court erroneously transferred a wrongful death and survival action from a Grayson County district court to itself pursuant to 5B of the Probate Code. In Re: Wilson N. Jones Memorial Hospital 3-11-2005 No. 03-0867 Real Property A sliver of property was taken for an embankment to support the elevation of a frontage road above an occasional creek bed. Lost market value of the remainder property is not compensable. Bexar v. Santikos 8-27-2004 No. 03-0471 Takings liability may arise when the governmental entity 1. knows that a specific act is causing identifiable harm; or 2. knows that the specific property damage is substantially certain to result from an authorized government action. City of Arlington v. State Farm Lloyds 9-3-2004 No. 03-0466 The homeowners association waived any objection by challenging jurisdiction for the first time on appeal. Simpson v. Afton Oaks Civic Club Inc. 9-3-2004 No. 03-1016 Texas Property Code 5.102 does not imply a private cause of action. Brown v. Cruz 12-3-2004 No. 03-0703 Given the deed’s ambiguity, the trial court erred in granting summary judgment. A jury should therefore hear evidence and determine the parties’ intent. J. Hiram Moore Ltd. v. Greer 12-31-2004 No. 02-0455 The deed in effect states that the owner conveys nothing, and that she conveys everything. The court cannot construe this deed as a matter of law and holds that the trial court erred in granting summary judgment. J. Hiram Moore Ltd. v. Greer 5-20-2005 No. 02-0455 “As both the inclusive and exclusive standards for the scope of legal-sufficiency review have a long history in Texas, as both have been used in other contexts to review matter-of-law motions, as the federal courts have decided the differences between the two are more semantic than real, and as both � properly applied � must arrive at the same result, we see no compelling reason to choose among them.” City of Keller v. Wilson 6-10-2005 No. 02-1012 The court disagrees with the court of appeals’ holding that a claim accrues for refund of an illegal fee when the fee is enacted rather than when it is paid. Lowenberg v. City of Dallas 6-10-2005 No. 04-0671 Securities Law The Texas Securities Act’s requirement of “reckless disregard for the truth or the law” means that an alleged aider is subject to liability only if it rendered assistance to the seller in the face of a perceived risk that its assistance would facilitate untruthful or illegal activity by the primary violator. Sterling Trust Co. v. Roderick Adderley, et al. 6-17-2005 No. 03-1001 Tax Law The court upholds the assessment of caverns used to store hydrocarbons separately from the surface. Matagorda County Appraisal Dist. v. Coastal Liquids Partners LP 5-27-2005 No. 03-1200 Torts There is no competent evidence to connect the client’s damages to its attorneys’ alleged negligence. Alexander v. Turtur & Associates Inc. 8-27-2004 No. 02-1009 The court of appeals erred in concluding that the Equal Protection Clause guarantees parents the right to bring a wrongful-death or survival claim for a stillborn child. Fort Worth Osteopathic Hospital Inc. v. Reese 8-27-2004 No. 02-1061 When the gravamen of the plaintiff’s complaint is for sexual harassment, the plaintiff must proceed solely under a statutory claim unless there are additional facts, unrelated to sexual harassment, to support an independent tort claim for intentional infliction of emotional distress. Hoffmann-La Roche Inc. v. Zeltwanger 8-27-2004 No. 02-0120 The provider is responsible to the innocent third-party plaintiffs for its own liability and that of its intoxicated patron, from whom it seeks recovery in the cross-action. F.F.P. Operating Partners LP v. Duenez 9-3-2004 No. 02-0381 When the objective elements of a crime reasonably appear to have been completed, a private citizen has no duty to inquire whether the suspect has some alibi or explanation before filing charges. First Valley Bank of Los Fresnos v. Martin 9-3-2004 No. 01-0910 The trial court erroneously consolidated for trial the workplace toxic-tort claims of 20 plaintiffs against nine defendants. In Re: Van Waters & Rogers Inc. 9-3-2004 No. 03-0777 New Times negated actual malice as a matter of law. New Times Inc. v. Isaacks 9-3-2004 No. 03-0019 While the parties here no longer dispute that a warning by the defendant supplier would have prevented the plaintiff’s injury, missing from this record is any evidence that, in general, warnings by flint suppliers could effectively reach their customers’ employees actually engaged in abrasive blasting. Without such evidence, the court is unable to determine whether a duty to warn should be imposed on flint suppliers. Humble Sand & Gravel Inc. v. Gomez 9-17-2004 No. 01-0652 In deciding whether a nuisance is temporary or permanent, the standard of reference should not be a few days or weeks, but all occurrences over the period of years within which claimants can bring suit and courts can bring them to trial. Judges and jurors may presume from the circumstances that current conditions will continue, absent evidence to the contrary. Schneider National Carriers Inc. v. Bates 10-1-2004 No. 03-0236 While the court agrees that there is evidence that the department store falsely imprisoned its customer, causing him actual harm, there is no evidence that the store acted with malice, the statutory predicate for an award of exemplary damages. Dillard Department Stores Inc. v. Silva 10-15-2004 No. 03-0669 Exemplary damages should not be adjusted by a mathematical formula; instead, each of the factors supporting the exemplary damages should be re-evaluated in light of the actual harm suffered by the plaintiff. Bunton v. Bentley 12-17-2004 No. 03-0974 Strict products liability is inapplicable when, as here, a company gratuitously provides a product to an independent contractor working for the company for the sole purpose of accomplishing the company’s business purposes; on appeal, a trial court’s determination regarding whether expert testimony is necessary to establish negligence should be reviewed de novo. FFE Transportation Services Inc. v. Fulgham 12-31-2004 No. 02-1097 The accident reconstruction expert’s reliance on the “laws of physics,” without more, is an insufficient explanation for how the wheel was able to remain pocketed in the rear wheel well throughout the turbulent accident sequence. Volkswagen of America Inc. v. Ramirez 12-31-2004 No. 02-0557 Applying the standard of evidentiary review adopted in Southwestern Bell Telephone Co. v. Garza (2004), the court concludes that there is no clear and convincing evidence supporting the jury’s finding that Diamond Shamrock was grossly negligent � more specifically, that Diamond Shamrock was actually, subjectively aware of the risk to the worker and was nevertheless consciously indifferent to his welfare. Diamond Shamrock Refining Co. LP v. Hall 1-21-2005 No. 02-0566 The court of appeals’ characterization of the deviation as a normal incident of travel conflicts with this court’s holding in De La Garza. Military Highway Water Supply Corp. v. Francisca Morin 1-21-2005 No. 03-0949 A faculty adviser’s alleged failure to properly supervise the drama club’s props that the director chose does not constitute a use of tangible personal property within the Tort Claims Act’s meaning. The play’s director was an independent contractor for whose acts or omissions the university is not liable. Texas A&M University v. Bishop 1-21-2005 No. 03-0448 For the same reasons explained in Humble Sand, the court remands this case to the trial court to determine the duty issue in accordance with that case. U.S. Silica Co. v. Estate of Tompkins 1-21-2005 No. 03-0195 The trial court’s instruction sufficiently informed the jury about the defendants’ inferential rebuttal defenses. Dillard v. Texas Electric Cooperative 2-11-2005 No. 03-0655 “We certainly understand judicial reticence to dismiss claims like this one stemming from heinous acts. But except in circumstances bordering on serious criminal acts, we repeat that such acts will rarely have merit as intentional infliction claims.” Creditwatch Inc. v. Jackson 2-25-2005 No. 02-1076 “Because the plaintiffs, who were public figures, failed to raise a fact issue on actual malice, we conclude that the media defendants were entitled to summary judgment.” Hearst Corp. v. Skeen 3-11-2005 No. 04-0414 While the expert did assert that gasoline siphoned from the return fuel line at the rear of the car, the only support he offered for this opinion was that he had eliminated all other possibilities. He eliminated the obvious possibility that fuel or vapors from the tank-filler neck ignited only by saying so, offering no other basis for his opinion. Such a bare opinion was not enough. General Motors Corp. v. Iracheta 4-8-2005 No. 02-0932 The tenant presented no evidence that the acts or omissions of an apartment complex, its owners and its manager proximately caused a tenant-on-tenant sexual assault that occurred at the complex. Western Investments Inc. v. Urena 4-8-2005 No. 03-0919 In a survival action, the decedent’s estate has a justiciable interest in the controversy sufficient to confer standing. Austin Nursing Center Inc. v. Lovato 5-13-2005 No. 03-0790 In a survival action, the decedent’s estate has a justiciable interest in the controversy sufficient to confer standing. Lorentz v. Dunn 5-13-2005 No. 03-0659 With regard to negligence, the trial court did not err when it refused to impose individual liability on a corporation’s agent and instead held the corporation liable for its agent’s negligence. Tri v. J.T.T. 5-13-2005 No. 03-0794 “Based on the entire context of the articles Cantu claims were defamatory, we hold that a reasonable reader would have understood the Herald’s reports to be a paraphrase or interpretation of Cantu’s remarks. Accordingly, proof that he did not make the exact remark attributed to him, standing alone, is no evidence of actual malice.” Freedom Newspapers of Texas v. Cantu 6-24-2005 No. 04-0115 Under these facts, a corporate policy that promotes “a hurried pace” and results in accidentally cutting a competitor’s fiber-optic cables is not legally sufficient to support an award of exemplary damages. Qwest International Communications Inc. v. AT& T Corp. 6-24-2005 No. 03-0825 Workers’ Compensation The specificity and details of the Staff Leasing Services Act negate the notion that parties can, by private agreement, decide that a single policy naming only one insured will cover one company’s employees while they are working under the direct control of another company, or that the experience rating of one and not the other will determine who the named insured will be. Garza v. Exel Logistics Inc. 4-8-2005 No. 02-1187 COURT OF CRIMINAL APPEALS Appeals When a court reporter fails or refuses to comply with the deadlines for filing the reporter’s record, the appellate record is not “lost or destroyed” for the purpose of Texas Rule of Appellate Procedure 34.6(f). Johnson v. State 12-8-2004 No. PD-894-03 An appellate court has the ability to examine a certification for defectiveness, and to use Texas Rules of Appellate Procedure 37.1 and 34.5(c) to obtain another certification, whenever appropriate. Neither of those rules provides any time limitation to their use. Dears v. State 1-26-2005 No. PD-1963-03 The court of appeals’ opinion issued on Sept. 8, 2004, was untimely under Texas Rule of Appellate Procedure 50, because it was issued more than 30 days after appellant’s petition for discretionary review had been filed. In Re: Parsons 2-2-2005 No. PD-1579-04 A difference between this case and Ross is that the trial court granted Ross’ motion without making specific findings of fact, while this trial court granted the defendant’s motion and made specific findings of fact. Those findings permitted the court of appeals to review the ruling without infringing on the trial court’s discretion to determine the facts. State v. Gray 2-16-2005 No. PD-0586-04 The court of appeals had no authority to withdraw its opinion without substituting another within the proper time period. Beller v. State 4-20-2005 No. PD-266-05 Assistance of Counsel The court of appeals misapplied the “clearly erroneous” standard of appellate review when it substituted its judgment for the trial court’s in deciding that the prosecutor’s facially race-neutral explanation for striking venire member 11 was a pretext. The term “pretext” is solely a question of fact; there is no issue of law. Gibson v. State 9-15-2004 No. 1604-03 Although trial counsel’s performance may have fallen below the objective standard of reasonableness in failing to object to the prosecutor’s argument, the record does not support a conclusion that, if counsel had objected to this argument, there is a probability that the outcome of the proceeding would have been different. Ex Parte White 9-29-2004 No. 74,757 “Trial counsel failed to object to the prosecutor’s misstatement of the law regarding whether the appellant’s sentences could be stacked, even though he knew that the State had filed a motion to cumulate the sentences. There can be no reasonable trial strategy in failing to correct this false impression that was harmful to the appellant.” Andrews v. State 3-23-2005 No. PD-993-03 A number of valid trial strategies could prompt defense counsel to refrain from asking questions regarding a prospective juror’s ability to fairly assess a certain punishment, including probation. But appellant’s trial counsel has not been afforded the opportunity to respond to this concern. Goodspeed v. State 4-6-2005 No. PD-1882-03 The facts indicate that the appellant did not raise a separate claim related to Brady. As a result, the appellant did not preserve for appellate review his complaint that the trial court erred in failing to grant his motion for new trial on the basis of a Brady violation. Keeter v. State 4-6-2005 No. PD-1012-03 Although one of his attorneys slept through portions of the trial, applicant was not deprived of the assistance of counsel under the Sixth Amendment because his second attorney was present and an active advocate at all times. Ex Parte McFarland 5-18-2005 No. AP-75,044 When defense counsel’s conduct deprives a defendant of his constitutional right to testify, the claim is properly characterized as one of ineffective assistance of counsel, and the usual analysis of prejudice under Strickland v. Washington applies. Johnson v. State 5-25-2005 No. PD-1623-03 Capital Cases A jury convicted appellant of capital murder. The trial judge sentenced appellant to death. This court affirms. Scheanette v. State 9-15-2004 No. 74,586 Antisympathy charges are appropriate in that they properly focus the jury’s attention on those factors relating to the moral culpability of the defendant. Prible v. State 1-26-2005 No. AP-74,487 “After reviewing the parties’ briefs and the relevant portions of the record, we conclude that our decision to grant the petition was improvident. Accordingly, we dismiss the State’s petition for discretionary review.” Alonzo v. State 3-16-2005 No. PD-0435-02 Appellant, one of seven prison escapees who murdered a police officer, appeals his conviction and death sentence. The court affirms. Halprin v. State 6-29-2005 No. AP-74,721 Charges In neither the jury instructions nor the verdict form was the jury instructed that it must unanimously agree upon any one of the three different criminal acts � murder of mother, murder of father or murder of both but not pursuant to a single scheme � to convict appellant of the lesser offense. The charge allowed for a non-unanimous jury verdict, in violation of the Texas Constitution’s and Texas Code of Criminal Procedure’s requirements for a unanimous jury verdict in felony cases. Hisey v. State 4-27-2005 No. PD-0223-04 Community Supervision The notations and orders in the first amended conditions of community supervision, coupled with the surrounding events and circumstances requiring the amended conditions, indicate that the 119 days were served as a term of the community supervision. Ex Parte Walker 12-1-2004 No. AP-74, 877 Deadly Weapon The question is whether the weapons are found to have facilitated the appellant’s possession and intended distribution of the drugs. In this case, a rational jury could have found that the appellant “used” the weapons in order to facilitate his possession and distribution of the narcotics. Coleman v. State 9-29-2004 No. 1466-03 The evidence presented at appellant’s trial was sufficient to persuade a rational trier of fact beyond a reasonable doubt that appellant used both his hand and his foot as “deadly weapons” within the meaning of that phrase as defined by the Penal Code. Lane v. State 12-8-2004 No. PD-1122-03 The switchblade knife in this case, which was viewed by the fact-finder and introduced into evidence, was a deadly weapon by design. Robertson v. State 5-18-2005 No. PD-0865-04 Death Penalty Judge Tom Price writes, “I continue to believe that the Court should stay the execution in this case because of the problems with the Houston Police Department Crime Lab. I write again because I disagree with the Court’s conclusion that the applicant has not met the requirements of Code of Criminal Procedure Article 11.071, Section 5.” Ex Parte Green 10-26-2004 No. WR-45,219-03 “Appellant has killed four people, including an infant. He has sexually assaulted numerous others and might have killed his latest victim if he had succeeded in stuffing her into a duffel bag. There was ample evidence from which a rational jury could conclude that appellant posed a future danger to society, whether inside or outside prison.” Bible v. State 5-4-2005 No. AP-74,713 DNA The trial court erred by finding that the state acted willfully in its noncompliance with the discovery order and by excluding the DNA evidence. State v. Larue 11-10-2004 No. PD-985-03 The appellant contends that the trial judge erred in finding that DNA results would not be exculpatory and that he would have been convicted even with DNA testing. His argument fails because the evidence at trial conclusively established his guilt. Hood v. State 3-2-2005 No. AP-75,027 Double Jeopardy The state, in its current prosecution of appellant for aggregated theft, may attempt to prove any number of the aggregated theft’s constituent thefts. However, consistent with the double jeopardy clause, the state may not attempt to re-litigate the facts underlying the theft alleged in the first indictment in an effort to prove that that offense or any of its lesser included offenses is one of the aggregated theft’s constituent thefts. Ex Parte Goodman 10-20-2004 No. 1087-03 Drug Possession The court finds no evidence in the record linking the possession of the narcotics in the backpack in the Cadillac to the possession of the narcotics in the truck. The court concludes that the possession of less than a gram of methamphetamine in the truck is not a lesser-included offense of the possession with intent to distribute between 4 and 200 grams of methamphetamine found in the backpack in the Cadillac. Campbell v. State 10-27-2004 No. 081-03 DWI “The jury instructions authorized finding that Gray was intoxicated if he took drugs which made him more susceptible to the influence of alcohol than he otherwise would have been, and therefore became intoxicated from the alcohol. We conclude that this jury charge properly applied the law to the facts of this case.” Gray v. State 12-15-2004 No. PD-1202-03 After applying the Montgomery factors, the court finds the factors weigh in favor of admissibility and the trial court erred in suppressing the Intoxilyzer results. State v. Mechler 1-12-2005 No. 0075-04 When a defendant stipulates to the two prior convictions necessary to establish the predicate for felony DWI, an appellate court cannot properly hold the evidence legally insufficient on the ground that one of the prior convictions is too remote in time and the record contains no evidence of an intervening conviction. Smith v. State 2-2-2005 No. 0755-04 Entrapment Under State v. Ross, a trial judge is not required to believe a defendant’s version of events supporting his entrapment defense, even if it is largely uncontradicted. Hernandez v. State 3-2-2005 No. PD-1222-04 Error Preservation The purpose of requiring an objection is to give to the trial court or the opposing party the opportunity to correct the error or remove the basis for the objection. Although this case involves a proffer of evidence rather than an objection, the same rationale applies. Reyna v. State 6-29-2005 No. PD-0255-04 Evidence Appellant was charged with intentionally or knowingly causing injury to a child, Christopher. The trial court admitted, over appellant’s objection, pictures of Christopher’s sister, which showed that she had soft-tissue bruises. Their admission was harmless error. Johnston v. State 9-15-2004 No. 1650-03 As a matter of federal constitutional exclusionary rule jurisprudence, derivative evidence that is the product of an illegal arrest in another state is not suppressible in a Texas prosecution. Thornton v. State 9-22-2004 No. 080-03 Repetition of the name of the offense was not harmful because: 1. the jury would have known the nature of the offense even if the trial court had prevented mention of the name at any stage except indictment; 2. the character conformity inference of the prior conviction was not particularly strong; 3. the conviction was for one of the less serious offenses subject to the registration statute; and 4. evidence supporting conviction was substantial. Herring v. State 10-6-2004 No. 358-03 Assessing all the evidence � including unobjected-to hearsay � in the light most favorable to the verdict, the court finds that the evidence links appellant to the contraband and is sufficient to support his conviction. Poindexter v. State 1-12-2005 No. PD-1816-03 The admission of a stipulation in a subsequent trial for the same offense is left to the sound discretion of the trial court. Carrasco v. State 1-19-2005 No. PD-0173-04 The trial court admitted a hearsay statement made by the victim four days after the attack. The statement qualifies as an excited utterance because a reasonable trial judge could have concluded that the victim was still under the influence of the startling event � the robbery � when he made the statement. Apolinar v. State 2-2-2005 No. PD-1057-03 A causal connection analysis regarding Texas Family Code 52.02(b), as required by this court in Gonzales II before evidence may be deemed inadmissible, is separate from an attenuation-of-taint analysis, which may be used by the state to rebut a defendant’s causal connection argument. Pham v. State 6-8-2005 No. 12-04 The trial court erred in admitting those portions of the jail incident reports and disciplinary reports that contained testimonial statements. Russeau v. State 6-29-2005 No. AP-74,466 Failure to Testify A prosecutor’s comment on a defendant’s failure to show remorse is tantamount to a comment on his failure to testify. However, if there is evidence in the record supporting the comment, then no error is shown. Howard v. State 10-13-2004 No. 74,138 Good Time Credit Applicant’s “aggravated assault on a peace officer” offense is not an offense described by Texas Government Code 508.149(a). Consequently, he is eligible for the 508.283 time credit. Ex Parte Byrd 5-4-2005 No. AP-74,993 Government Code 508.149(a) The applicant’s prior conviction for sexual abuse precludes mandatory supervision release because it is a predecessor to an offense enumerated in Government Code 508.149(a). Ex Parte Ervin 4-6-2005 No. AP-74,985 Habeas Corpus Texas Government Code 498.0045 does not apply to Texas Code of Criminal Procedure Article 11.07 habeas corpus proceedings. Ex Parte Rieck 9-15-2004 No. 74,799 Applicant is entitled to the opportunity to file an out-of-time petition for discretionary review due to counsel’s failure to “assure that Applicant’s ability to file a Petition for Discretionary Review was protected.” In Re: Ex Parte Torres 10-20-2004 No. 75,030 Matters that may be raised and resolved by nunc pro tunc proceedings should not be considered by way of writ of habeas corpus. Ex Parte Ybarra 10-27-2004 No. 75,032 The court denies this application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071. Ex Parte Blue 11-10-2004 No. WR-39,705-02 The court dismisses this application without prejudice because applicant’s federal writ of habeas corpus challenging his capital murder conviction and death sentence is pending in the federal district court and that court has not stayed its proceedings for applicant to return to state court to consider his current unexhausted claims. Ex Parte Goynes 11-10-2004 No. WR-52,487-02 The court denies this post-conviction application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071. Ex Parte Hankins 11-10-2004 No. WR-60,227-01 The court dismisses this application without prejudice because applicant’s federal writ of habeas corpus challenging his capital murder conviction and death sentence is pending in federal court and the federal court has not stayed its proceedings for applicant to return to state court to consider his current unexhausted claims. Ex Parte Tennard 11-10-2004 No. WR-24,622-02 Applicant has failed to show that he is mentally retarded; the court denies his subsequent application for writ of habeas corpus. Ex Parte Wilson 11-10-2004 No. WR-46,928-02 Presented with evidence including the complainant’s testimony that she was intimidated and manipulated into making the accusations against her father, in conjunction with the “completely normal” results of the medical examination, and the sworn testimony of the complainant that the events in question never happened at all, the habeas court’s finding that no reasonable juror could have found applicant guilty is supported by the record. Ex Parte Thompson 1-12-2005 No. AP-74,820 The trial court’s review of applicant’s parole records reveal that applicant was confined pending a motion to revoke parole in this cause from Feb. 5, 2001, until June 13, 2001, and that applicant has not been given credit for this time. Applicant is entitled to relief. Ex Parte Kerns 2-2-2005 No. AP-75,085 Because a habeas corpus action is separate from the underlying criminal prosecution, a ruling in the habeas action is not tantamount to a ruling on the same issue in a motion to dismiss in the criminal prosecution. Nor can a ruling in the habeas action, by itself, be a basis for an inference that the trial court made, in the criminal prosecution, a ruling not reflected in the record. Greenwell v. Court of Appeals for the 13th Judicial District 2-9-2005 No. AP-75,017 A habeas applicant cannot establish a constitutional violation simply by demonstrating that an allegedly erroneous jury instruction could have or might have affected some hypothetical jury. Ex Parte Staley 4-27-2005 No. WR-37,034-02 Indictments Because the state failed to provide sufficient notice to inform the accused of the specific acts for which he was charged, the trial court did not err in quashing the indictment. State v. Moff 10-6-2004 No. 458-03 A variance between a deadly weapon allegation in the indictment (a “screwdriver “) and the proof at trial (a “hard metal-like object”) is not material. Flenteroy v. State 4-6-2005 No. PD-831-03 The state may, with the permission of the trial court, abandon a portion of the indictment. Garland v. State 6-29-2005 No. PD-1231-04 Jurors In light of the venire person’s apparently contradictory responses, the court defers to the trial judge who was best-positioned to evaluate her demeanor and voir dire as a whole. Threadgill v. State 10-13-2004 No. 74,458 Jury Charge The jury charge did not require that the jurors unanimously agree upon any one of three alternate theories, and thus, it violated both the Texas Constitution and state statutes, which require a unanimous jury verdict. Ngo v. State 3-16-2005 No. PD-0504-04 Jury Selection When a trial court erroneously excuses a prospective juror for economic reasons in violation of Texas Government Code 62.110(c), the error is not “structural,” requiring reversal without a harm analysis. Gray v. State 3-16-2005 No. PD-0697-04 Jury View The court of appeals erred in holding that the trial court erred in permitting the jury view. Mauricio v. State 1-12-2005 No. PD-0923-03 Length of Arguments In reviewing a trial court’s determinations of the length of arguments, the court should consider, but is not limited to, the following nonexclusive list of factors on a case-by-case basis: 1. quantity of evidence; 2. trial duration; 3. testimony conflicts; 4. seriousness of the offense; 5. case complexity; 6. whether counsel used time allotted efficiently; and 7. whether counsel set out what issues were not discussed because of the time limitation. Dang v. State 1-26-2005 No. PD-568-03 Lesser-Included Offense If the jury truly believed that appellant performed a “sleeper hold” as a sexual maneuver and did not intend to kill the victim, the jury could easily have given effect to that belief by acquitting appellant of capital murder and convicting him of manslaughter. That the jury chose not to do so shows that it did not believe appellant’s story. Any error in the instruction error was harmless. Masterson v. State 2-2-2005 No. AP-74,344 Where there is record evidence that demonstrates a public officer is unlawfully discharging his official duties at the time a person assaults him, the defendant is entitled to a lesser-included charge. But because appellant did not offer evidence that the officer here acted unlawfully, the court affirms the judgment of the court of appeals. Hall v. State 2-16-2005 No. PD-0277-04 The trial court did not err in denying the appellant’s request because an assault using fists is not a lesser-included offense of murder by stabbing. Hayward v. State 3-2-2005 No. PD-2081-03 A trial court is not required to instruct a jury on a lesser-included offense where the conduct establishing the lesser offense is not “included” within the conduct charged; i.e. within the facts required to prove the charged offense. Irving v. State 4-27-2005 No. PD-0091-04 Whether appellant was the actual actor or criminally responsible for the acts of his cohorts by virtue of the law of parties, the evidence shows not only an intent to commit robbery or a lesser-included offense, but also the intent to kill. Thus the evidence did not raise the issue of felony murder. Salinas v. State 5-18-2005 No. AP-74,524 Mandatory Supervision Applicant was not entitled to a hearing to contest his confinement in the Ben Reid Correctional Facility as a condition of his mandatory supervision. Ex Parte McCurry 6-29-2005 No. AP-74,969 Mental Illness The judge may determine whether mental-illness evidence may be presented, and if it is presented, may determine whether it raises the issue of a lesser-included offense. Then, the jury may decide if the evidence lessens the defendant’s culpability by finding him guilty of a lesser-included offense if presented at the guilt phase of trial or by assessing a lesser sentence at the punishment phase. Jackson v. State 4-13-2005 No. PD-1655-03 Mental Retardation The record supports the trial court’s findings that applicant is mentally retarded; the court reforms applicant’s sentence to life imprisonment. Ex Parte Bell 11-10-2004 No. AP-75,038 The record supports the trial court’s findings that applicant is mentally retarded; the court reforms applicant’s sentence to life imprisonment. Ex Parte Valdez 11-10-2004 No. AP-75,039 The court denies the applicant’s application for habeas relief based on a claim of mental retardation. Ex Parte Rodriguez 6-15-2005 No. WR-44,330-02 Mitigation What a jury is asked to decide in the mitigation special issue is not a fact legally essential to the punishment. Perry v. State 12-15-2004 No. AP-74,591 The court rejects appellant’s argument that the statutory mitigation instruction in its present form is unconstitutional. Woods v. State 12-15-2004 No. AP-74,430 New Trial Because the trial judge is prohibited from commenting on the evidence in ruling on a motion for new trial, reviewing courts may impute implicit factual findings that support the trial judge’s ultimate ruling on that motion when such implicit factual findings are both reasonable and supported in the record. Charles v. State 10-6-2004 No. 1729-03 Pleas The court granted discretionary review to address whether the plea agreement was illegal. The court determines that the decision to grant review was improvident. Keller v. State 10-13-2004 No. 1971-03 The court rejects appellant’s claims that his guilty plea is invalid under Boykin, because the record does not affirmatively show that appellant understood the nature of the constitutional due-process protections that he was waiving when he pled guilty. Gardner v. State 5-4-2005 No. PD-1131-04 Preservation of Error Due t 1. the lack of time-specific questions by the prosecutor; 2. counsel’s failure to cite to the state constitution or even specify that he was objecting to post-arrest silence; and 3. the lack of commentary by the judge in making his rulings on the objections, the court holds that the appellant did not preserve error on any of the grounds he presents for review. Heidelberg v. State 9-15-2004 No. 1418-03 Because appellant never presented his prosecutorial vindictiveness claim in the trial court, he failed to preserve this issue for appellate review. Neal v. State 11-17-2004 No. PD-1559-03 Pretrial The statutes authorizing pretrial proceedings do not contemplate a “mini-trial” on the sufficiency of the evidence to support an element of the offense. Woods v. State 1-12-2005 No. 1693-03 Prior Convictions “Bryant stipulated to his prior convictions. This was a judicial admission which removed the need for proof of those convictions. By entering into that stipulation, Bryant waived “his right to put the government to its proof of that element.’ He cannot complain on appeal that the State failed to prove “an element to which he confessed.’” Bryant v. State 4-6-2005 No. PD-672-04 Prosecutorial Misconduct Given the strength of the evidence against appellant, the court’s instruction to the jury to disregard the prosecutor’s testimony and the tangential nature of that testimony, the court does not find an abuse of discretion in the trial court’s failure to declare a mistrial. Ramon v. State 12-15-2004 No. PD-2030-03 Punishment Appellant’s due-process vindictiveness theory on appeal bore no resemblance to the equitable plea he made at trial. His position at the punishment hearing was that any sentence of more than two years would be unfair. This was not sufficient to put the trial court on notice of a due-process claim. Neal v. State 11-17-2004 No. PD-1559-03 Although the court adopts the trial court’s finding that applicant failed to show that the judge prejudged the decision of whether to revoke probation, the court finds that the record does not support the further finding that the judge did not prejudge the punishment to be assessed once he did decide to revoke probation. Ex Parte Brown 1-12-2005 No. AP-73,932 Revocation The court sees no reason to distinguish a nonfinal conviction or subsequent reversal of a conviction in the parole context from that in the probation-revocation context. Here, the trial court made a finding that the applicant’s guilty plea and conviction were conditioned on the appeal. Because the conviction was on appeal at the time of the revocation, and no other evidence was relied on to support the revocation, the revocation was improper. Ex Parte Radford 11-10-2004 No. AP-74,660 Right to Counsel When a suspect has invoked his right to counsel, but then voluntarily reinitiates conversation with the police and expressly waives his right to counsel, the Edwards rule has been satisfied. Cross v. State 9-15-2004 No. 1439-03 Search and Seizure The continued detention of a driver for an additional three to 12 minutes, after the officer’s original articulable suspicion had already been resolved, while waiting for the results of a routine computer driver’s license check, was not a violation of the Fourth Amendment. Kothe v. State 10-20-2004 No. 1738-03 The court of appeals erred by holding that according to Steelman, the odor of marijuana coming out of the house, along with the other observations made by the officer, did not establish probable cause to search the house. Estrada v. State 1-26-2005 No. PD-1629-03 The court does not agree with the decision of the court of appeals that police may not enter a home to investigate a possible burglary after detaining what ultimately turns out to be the sole suspect in the burglary. Barocio v. State 3-9-2005 No. PD-1980-03 The state failed to elicit any testimony pertinent to what facts would allow the officer to objectively determine the defendant was violating a traffic law in support of his judgment. Even viewing the evidence in the light most favorable to the trial court’s ruling, the record does not support a finding of reasonable suspicion. Ford v. State 3-9-2005 No. PD-1946-03 Sentencing The second attempt at sentencing violated appellant’s rights under the double jeopardy clause. Because the 10-year sentence was a valid and authorized sentence under the Texas Penal Code, the trial court’s second pronouncement of a 25-year sentence the following day was an unconstitutional 15-year increase. Harris v. State 1-12-2005 No. PD-1298-03 “We decide, based on our decision in Kersh, that the State appealed a sentence on the ground that the sentence is illegal and that the jurisdiction of the Court of Appeals was, therefore, properly invoked.” State v. Wooldridge 3-9-2005 No. PD-0912-04 Sexual Assault Under the facts of these incidents, exposure was incident to and subsumed by the aggravated sexual assault. Patterson v. State 11-10-2004 No. PD-0117-03 Speedy Trial “The delay after appellant’s probation revocation is less excusable, and we find that the latter delay weighs moderately against the State. But the trial court could have concluded that the prejudice suffered after that point was virtually nonexistent, because appellant was already incarcerated on a different offense.” Kelly v. State 4-13-2005 No. PD-0023-04 Sufficiency of the Evidence “In this case, the overwhelming weight of the evidence mitigates against the conclusion that Vodochodsky solicited, encouraged, directed, aided or attempted to aid Engleton in committing the offense. All of the evidence that could legally support a rational jury’s conclusion is nevertheless so weak that our confidence in the jury’s verdict is undermined.” Vodochodsky v. State 3-16-2005 No. AP-74,129 Texas Code of Criminal Procedure Article 14.03(g) It was not necessary for the court of appeals to determine whether the officer had jurisdiction to stop appellant for mere traffic offenses, because Texas Code of Criminal Procedure Article 14.03 (g) provides that an officer outside his jurisdiction may stop a person who is driving while intoxicated. Brother v. State 6-29-2005 No. PD-1820-02 Texas Code of Criminal Procedure Article 11.07 3(b) A “plain reading” of Texas Code of Criminal Procedure Article 11.07 3(b) bespeaks a legislative intent to no longer require a district clerk to transfer an Article 11.07 habeas corpus application “to the court in which the challenged conviction was obtained” when the application “is presented to a district clerk in a county in which the challenged conviction was not entered.” Ex Parte Burgess 12-15-2004 No. AP-74,950 Texas Code of Crimina lProcedure Article 14.03 An officer of the police department of a city does not have authority to stop a person for committing a traffic offense when the officer is in another city within the same county. State v. Kurtz 10-20-2004 No. 1397-03 Texas Code of Crimina lProcedure Article 14.05(1) The appellant’s warrantless home arrest was authorized by Texas Code of Criminal Procedure Article 14.05(1). Gallups v. State 12-8-2004 No. PD-897-03 Texas Code of Criminal Procedure Article 27.13 Pursuant to Shields, any complaint arguing deviation from Texas Code of Criminal Procedure Article 27.13 should be evaluated under the particular facts of that case to determine whether the trial court complied with the applicable law. Costilla v. State 10-6-2004 No. 1901-02 Texas Code of Criminal Procedure Article 36.19 The correct standard of review for jury-charge error is Texas Code of Criminal Procedure Article 36.19. Guevara v. State 10-20-2004 No. 0424-03 Texas Code of Criminal Procedure Article 38.22 6 When the voluntary nature of a statement is challenged, Texas Code of Criminal Procedure Article 38.22 6 requires the trial court to make written fact findings and conclusions of law as to whether the challenged statement was made voluntarily. Urias v. State 10-20-2004 No. 335-03 Texas Code of Criminal Procedure Article 38.23(a) Article 38.23(a) of the Code of Criminal Procedure may permit the admission against the accused in the trial of a criminal case of evidence that private persons acquired by conduct that violated a criminal law, when private persons turn over such evidence to an officer; but that article does not permit it in this case. State v. Kurtz 10-20-2004 No. 1677-03 Texas Code of Criminal Procedure Article 42.12 20 A close reading of the article demonstrates that 20 and its procedures for terminating community supervision do not apply to a defendant placed on deferred-adjudication community supervision. Rather, 5(c) controls deferred-adjudication community supervision and requires no minimum term of supervision that must be served before early dismissal. State v. Juvrud 10-13-2004 No. 006-03 Texas Code of Criminal Procedure Article 42.12 Based on the plain meaning of the language in Texas Code of Criminal Procedure Article 42.12, the appellant could waive his right to the pre-sentence investigation report during the initial plea proceedings and the waiver was effective for the sentencing proceedings. Griffith v. State 6-29-2005 No. PD-1121-04 Texas Code of Criminal Procedure Article 44.01(a)(5) Texas Code of Criminal Procedure Article 44.01(a)(5) does not require the certification to be in the notice of appeal. State v. Johnson 6-8-2005 No. PD-1387-04 Texas Code of Criminal Procedure Article 44.01(f) Texas Code of Criminal Procedure Article 44.01(f) provides that “The court of appeals shall give precedence in its docket to an appeal filed under Subsection (a) or (b) of this article.” The state contends that this provision about precedence in court of appeals’ dockets means that courts of appeals have jurisdiction of every appeal filed under subsection (a) or (b). The language of the statute will not bear the weight of that inference. State v. Alley 3-9-2005 No. PD-1300-04 Texas Code of Criminal Procedure Articles 45.201 and 44.01(d) The timely made assertion in the city’s amended notice of appeal that the “County Attorney has consented to the City Attorney prosecuting this appeal” is “in some fashion” a written express personal authorization by the county attorney of this specific notice of appeal in this particular case. State v. Blankenship 10-6-2004 Nos. 1998/99/00/01/02/03/04/05-03 Texas Code of Criminal Procedure Article 46.02 3(g) It was error to admit the appellant’s statement from the incompetency examination, in violation of former Texas Code of Criminal Procedure Article 46.02, 3(g). Mitten v. State 9-22-2004 No. 1271-02 Texas Code of Criminal Procedure Chapter 64 Because the appellant claimed actual innocence and the trial judge took judicial notice of the trial record, the court of appeals erred by holding there were insufficient facts supporting appellant’s motion for DNA testing. Smith v. State 6-15-2005 No. PD-393-04 Texas Penal Code 1.04(1) Because the kidnapping was an element of the capital murder and the kidnapping occurred in Texas, the jurisdictional requirements of Texas Penal Code 1.04(1) are met. Rodriguez v. State 10-13-2004 No. 1568-03 Texas Penal Code 19.03(a)(7)(A) The double jeopardy clause of the Fifth Amendment was violated when the state charged appellant with three separate counts of capital murder under Texas Penal Code 19.03(a)(7)(A), because the charges rely on the same three murders for each charge. Saenz v. State 06-29-2005 No. PD-61-04 Texas Penal Code 30.05 Minors assisting the Texas Alcoholic Beverage Commission should not be considered trespassers even in the face of a no-trespassing sign. Phillips v. State 4-27-2005 No. PD- 1400-03 Texas Penal Code 49.09(e) The court rejects the state’s argument that a court interpreting a statute should follow the Legislature’s intent regardless of what it wrote. The plain language of 49.09(e) is clear and it does not lead to an absurd result. Getts v. State 1-26-2005 No. PD-0093-04 Texas Penal Code 9.31 The court disagrees with the court of appeals’ holding that the self-defense statute, Penal Code 9.31, demonstrated a legislative purpose to exclude the necessity defense under section 9.22(3). Bowen v. State 5-4-2005 No. PD-1873-03 Texas Rule of Appellate Procedure 25(a)(2) The requirements of the current Texas Rule of Appellate Procedure 25(a)(2) are consistent with the initial legislative intent and do not impermissibly abridge the right to appeal. Griffin v. State 9-29-2004 No. 1092-03 Texas Rule of Evidence 404(b) Tate does not require a defendant to have been “implicated” by the victim’s prior bad act before such evidence can be admissible under Rule 404(b). Hayes v. State 4-27-2005 No. PD-0191-04 Texas Rule of Evidence 614 The state’s designating a witness as a “case agent” does not make a witness one whom the court may not exclude from the courtroom under Rule 614. Russell v. State 2-2-2005 No. AP-74,595 Texas Rule of Professional Responsibility 3.08 Application of Texas Rule of Professional Responsibility 3.08 is unwarranted when the witness is not serving the prohibited role of advocate and witness. Powers v. State 6-15-2005 No. PD-1380-04 Voir Dire “During voir dire, the trial judge denied Rodney Rich’s request to ask a proper question of the venire. In assessing harm, the Court of Appeals relied on the test for individual voir dire examinations. We conclude that this test does not apply when voir dire is conducted in a group setting rather than individually.” Rich v. State 4-13-2005 No. PD-1275-03 Witnesses When there is a compelling need to call defense attorney as a witness in the case, the trial court must take all appropriate ameliorative measures to prevent harm. Flores v. State 12-15-2004 No. PD-1908-02

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