Editor’s note: What follows are summaries of state and federal appellate court opinions issued from Sept. 25 to Sept. 27. The list is organized by court and practice area. All of the opinions listed are available on www.texaslawyer.com.

Court of Criminal Appeals

Criminal Law

Crenshaw v. State
Sept. 26, 2012; No. PD-1252-11

A court of appeals reversed the appellant’s conviction for alleged driving while intoxicated. The appellant was convicted under the subjective theory of intoxication as alleged in the information. Including the per se definition of intoxication in the abstract portion of the jury charge did not expand the allegations against appellant. The court of appeals judgment is reversed and remanded.

Courts of Appeals – Civil


In Re Carrington
Amarillo Court of Appeals
Sept. 27, 2012; No. 07-12-00220-CV

The petitioner requests that this court order the trial judge to provide him with the original jury note and a copy of that note so that he may appeal his conviction. The petition appears to be based on his contention that the note included in the appellate record on direct appeal was a false jury note prepared by the trial judge. A mandamus action requires certainty as to both pleadings and facts. The writ of mandamus is denied.

In Re Saucedo
Amarillo Court of Appeals
Sept. 27, 2012; No. 07-12-00284-CV

The petitioner requests that this court direct the respondents to rule on his two pending motions, one requesting DNA testing and one requesting a new trial. The petitioner bore the burden of providing a record showing that a properly filed motion has awaited disposition for an unreasonable period of time. The writ of mandamus is denied.

Civil Practice

In Re Hereweareagain Inc.
Houston’s 14th Court of Appeals
Sept. 25, 2012; No. 14-11-00765-CV

This is a consolidated appeal and petition for writ of mandamus challenging the trial court’s sanctions against alleged contemnors. Notice is essential for the proper imposition of sanctions. The writ is conditionally granted.

Employment Law

City of El Paso v. Marquez
El Paso Court of Appeals
Sept. 25, 2012; No. 08-11-00262-CV

The city of El Paso appeals the denial of its plea to the jurisdiction and motion for summary judgment in this suit by a former city employee. The appellee’s Texas Labor Code Chapter 21 claims were timely filed under the continuing violation doctrine. Because claims alleging 42 U.S.C. §1981 violations against state actors must be brought under §1983, the trial court lacks subject-matter jurisdiction over the appellee’s §1981 claims. The trial court’s judgment is affirmed in part and dismissed in part.

Family Law

In Re Saldana
Waco Court of Appeals
Sept. 27, 2012; No. 10-12-00332-CV

The relator seeks habeas corpus relief after having been found in contempt by the respondent trial judge for violating temporary orders in the underlying divorce case. Because the trial court’s March 12 order was rendered more than 30 days after the relator had perfected his appeal of the January 12 divorce decree, the March 12 order is void. The writ of habeas corpus is granted.

In the Interest of P.J.B.
Waco Court of Appeals
Sept. 27, 2012; No. 10-12-00286-CV

In this appeal from a termination of parental rights, the appellant’s counsel filed a motion to extend the due date for appellant’s brief. The appeal is abated to the trial court with instructions to hold a hearing to determine whether the most expeditious route to a completed brief on appellant’s behalf is to stay with the currently appointed counsel or to appoint new counsel.

Health Law

Columbia North Hills Hospital Subsidiary LP v. Alvarez

Fort Worth Court of Appeals
Sept. 27, 2012; No. 02-12-00009-CV

In this interlocutory appeal, a hospital challenges the trial court’s denial of its motion to dismiss a health care liability claim. Because the direct liability claims are about the alleged failure in the hospital’s administrative care, the expert does not need to be a nurse or physician to qualify as an expert for the direct liability claims; rather, he needs to be an experienced hospital administrator. The trial court’s order is affirmed.

Real Property

I-10 Colony Inc. v. Lee
Houston’s 14th Court of Appeals
Sept. 25, 2012; No. 14-10-01051-CV

The trial court granted declaratory relief to the appellee in this dispute over the ownership of and profits derived from a hotel property. Foreclosure of one of the co-equal liens does not by itself extinguish the other co-equal lien, just as foreclosure on a junior lien does not generally affect the rights of a senior lienholder. If resolution of a dispute does not require a determination of which party owned title at a particular time, the dispute may properly be raised in a declaratory judgment action. The trial court’s judgment is affirmed as modified.

Mattox v. County Commissioners’ Court
Houston’s 14th Court of Appeals
Sept. 25, 2012; No. 14-11-00383-CV

In this real property dispute over an alleged road on the landowners’ property, the trial court granted summary judgment to landowners and ordered that the case be remanded to a county commissioners’ court. In Texas Local Government Code §232.008 the Texas Legislature does not authorize the commissioners’ court to cancel only a dedicated easement or roadway or a portion thereof. This statute speaks to the cancellation of a subdivision or part thereof but not to the cancellation of only an easement or roadway (or some portion of an easement or roadway). The case is reversed to the extent the trial court ordered a remand to the commissioners’ court and remanded.

Courts of Appeals – Criminal

Criminal Law

Aviles v. State
San Antonio Court of Appeals
Sept. 26, 2012; No. 04-11-00877-CR

The appellant challenges his conviction for alleged driving while intoxicated. Erratic driving, slurred speech, bloodshot eyes and performance during the field-sobriety tests support the appellant’s warrantless arrest. The trial court’s judgment is affirmed.

Olivarez v. State
San Antonio Court of Appeals
Sept. 26, 2012; No. 04-11-00576-CR

The trial court adjudicated the appellant guilty of the offense of possession of a controlled substance under one gram. The trial court’s failure to make a finding that it would be in the best interest of society and the appellant to be found guilty and removed from community supervision does not affect the trial court’s jurisdiction or void the trial court’s judgment. The trial court’s judgment is affirmed.

Rivera v. State
Beaumont Court of Appeals
Sept. 26, 2012; No. 09-11-00267-CR

The appellant challenges his conviction for alleged capital murder. A procedure allowing the testimony of a witness on active duty in Iraq through live videoconferencing does not violate the confrontation clause. The trial court’s judgment is affirmed.

Robinson v. State
Eastland Court of Appeals
Sept. 27, 2012; No. 11-10-00272-CR

The appellant was convicted by a jury of alleged delivery of cocaine in a drug-free zone. A rational jury could have determined beyond a reasonable doubt that a “middle school,” a building owned but not in use by the school district, was a school as defined in the jury charge. The trial court’s judgment is affirmed.

5th U.S. Circuit Court of Appeals

Immigration Law

Carias v. Holder
Sept. 27, 2012; No. 11-60550

The petitioner was removed from the United States in 2005. In December 2010, the petitioner filed a motion to reopen with the Immigration Court that was denied. Regardless of whether aliens have left the United States, 8 U.S.C. §1229a(c)(7) unambiguously gives them a right to file a motion to reopen. The Board of Immigration Appeals’ application of the departure regulation to statutory motions to reopen is invalid under Chevron. The petition for review is granted, and the proceedings are remanded to the board.

Tax Law

Keller v. United States ???
Sept. 25, 2012; No. 10-41311

The district court upheld an estate’s claim that it was due a tax refund based on a substantial deduction for interest on an erroneous tax payment, which it retroactively characterized as a loan from a limited partnership to the estate for payment of estate taxes. The decedent transferred to the limited partnership the full amount of the applicable community property bonds before her death, and the district court correctly applied the relevant discount reflecting the encumbrance on the partnership interests. The estate and partnership may not be collapsed to functionally the same entity simply because they share substantial (though not complete) common control. The district court correctly permitted a deduction for the interest on the resulting loan. The district court’s judgment is affirmed.