Editor’s note: What follows are summaries of state and federal appellate court opinions issued from Sept. 14 to Sept. 20. The List is organized by court and practice area. All of the opinions listed are available on www.texaslawyer.com.

Court of Criminal Appeals

Riley v. State
Sept. 19, 2012; No. PD-1531-11

The court of appeals agreed with the appellant that, because of his trial counsel’s ineffective assistance, he was denied an opportunity to be placed on deferred-adjudication community supervision. While the appellant has shown deficient performance by trial counsel, he has failed to prove that, had defense counsel properly informed appellant of his ineligibility for probation, there is a reasonable probability that his trial would have produced a different result. The court of appeals’ judgment is reversed and remanded.

Robinson v. State
Sept. 19, 2012; No. PD-0238-11

The court of appeals reversed and remanded the appellant’s conviction finding harmful error in the trial court’s failure to provide a jury instruction pursuant to Texas Code of Criminal Procedure Article 38.23(a). If there is a dispute about whether a police officer was genuinely mistaken, or was not telling the truth, about a material historical fact upon which his assertion of probable cause or reasonable suspicion hinges, an instruction under Article 38.23(a) would certainly be appropriate, but such was not the case here. The cause is remanded to the court of appeals.

Courts of Appeals – Civil

Commercial Law

Art & Frame Direct Inc. v. Dallas Market Center Operating L.P.
Dallas Court of Appeals
Sept. 18, 2012; No. 05-10-01471-CV

This is an appeal from a judgment allowing the garnishment of funds transferred pursuant to a zero balance account agreement from the appellant’s account to satisfy a judgment against it. Access, alone, is not determinative of true ownership of funds. The judgment is reversed and remanded in part, and affirmed in part.

Contracts

Holloway v. Dekkers
Dallas Court of Appeals
Sept. 18, 2012; No. 05-10-01132-CV

The appellant sued after his dismissal from employment as head golf professional at a golf course. Because the agreement is within the statute of frauds, it is unenforceable because it is not signed by the person to be charged. To remove an oral agreement from the statute of frauds, the partial performance must be “unequivocally referable” to the agreement. The trial court’s judgment is affirmed.

Election Law

In Re Vela
San Antonio Court of Appeals
Sept. 14, 2012; No. 04-12-00569-CV

The relator seeks a writ of mandamus compelling a city secretary to certify the relator as a candidate for mayor. The failure to certify was based on the alleged failure of the relator to establish residency in the city for six months. Because the public records relied upon by the city do not conclusively establish that the relator was not a resident for six months, the writ is conditionally granted.

Family Law

In the Interest of C.J.S.
Houston’s 14th Court of Appeals
Sept. 20, 2012; No. 14-12-00330-CV

The appellant appeals from the trial court’s order terminating her parental rights to her sons. Termination must be based on more than a single act or omission; a voluntary, deliberate, and conscious course of conduct by the parent is required. The requisite endangerment may be found if the evidence shows a parent’s course of conduct that has the effect of endangering the child’s physical or emotional well-being. The trial court’s judgment is affirmed.

Health Law

Clapp v. Perez
El Paso Court of Appeals
Sept. 19, 2012; No. 08-11-00133-CV

The defendants in this health care liability suit appeal the trial court’s denial of their motions to dismiss. An expert report that groups physicians together and fails to address the standard of care as to each of them is inadequate. The trial court’s judgment is reversed and the claims are dismissed.

Insurance Law

In Re State Farm Mutual Automobile Insurance Co.
El Paso Court of Appeals
Sept. 19, 2012; No. 08-12-00176-CV

An insurer moves for rehearing, urging that the court of appeals’ decision to deny mandamus relief with respect to the trial court’s order denying abatement. Severance is required when an insurer offers to settle the entire contract claim so as to avoid the unfair and prejudicial dilemma an insurer faces in simultaneously defending against a contract claim and extra-contractual claims. Abatement is required because it has not been established that the insureds are “legally entitled to recover” from the underinsured motorist. The writ of mandamus is conditionally granted.

Courts of Appeals – Criminal

Criminal Law

Brooks v. State
Amarillo Court of Appeals
Sept. 18, 2012; No. 07-11-00353-CR

The appellant challenges his convictions for alleged felony assault, sexual assault and aggravated sexual assault. The appellant contends that Count II of the indictment, under which he was convicted of alleged aggravated sexual assault, could be read to charge only sexual assault. Appellant’s issue is an attempt to avoid the results of failing to object or filing a motion to quash. The trial court’s judgment is affirmed as modified.

Owens v. State
Texarkana Court of Appeals
Sept. 19, 2012; No. 06-11-00231-CR

The appellant challenges his conviction for alleged sexual assault of a child. The fact that a witness makes contradictory or inconsistent statements does not destroy his or her testimony as a matter of law. The trial court’s judgment is affirmed.

State v. Dinur
Houston’s 14th Court of Appeals
Sept. 20, 2012; No. 14-12-00406-CR

The state appeals the dismissal of driving while intoxicated charges. Because there was no constitutional violation, and no statutory or common-law basis for dismissal has been offered, the trial court abused its discretion in dismissing the charging instrument without the consent of the state. The dismissal is reversed and remanded.