Editor’s note: What follows are summaries of state and federal appellate court opinions issued from Jan. 9 to Jan. 16. 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

Daugherty v. State
Jan. 9, 2013; No. PD-1717-11

The court decides whether the failure to prove that appellant secured the performance of the contract with a “worthless check” was merely an immaterial variance under Gollihar or whether the state failed to prove the essential element that an act of deception secured performance of a contractor’s services. When the indictment alleges theft of services by “deception” through the issuance of a bad check, proof that the check was issued after the performance of the services will not support a conviction for theft of services. The court affirms the court of appeals judgment rendering an acquittal.

Ex Parte Parrott
Jan. 9, 2013; No. AP-76,647

An applicant must prove harm to obtain relief in a writ of habeas corpus premised on an illegal-sentence claim. In this case, the habeas record establishes that Parrott was previously convicted of other offenses that support the punishment range within which he was admonished and sentenced; therefore, he has failed to demonstrate harm.

Padieu v. Court of Appeals of Texas, Fifth District
Jan. 9, 2013; No. AP-76,727

The court of appeals rejected the relator’s petitions for writs of mandamus. When there is no pending application for habeas corpus filed under Texas Code of Criminal Procedure Article 11.07, the appellate court is not without jurisdiction to rule on mandamus petitions relating to a motion requesting access to material that could be used in a future habeas application. Writ of mandamus is conditionally granted directing the court of appeals to rescind its decision dismissing relator’s petitions for writ of mandamus for want of jurisdiction.

Sullivan v. State
Jan. 9, 2013; No. PD-1678-11

A jury convicted appellant of four sexual assaults against three victims and sentenced him to 18 years of imprisonment in each case. One of the series of sentences was improperly stacked. A cumulation order in a written judgment may not substantively vary from the cumulation order contained in the trial judge’s oral pronouncement of sentence. Because there is no doubt of the trial judge’s intent, the cumulation order is reformed and the judgments of the lower courts are affirmed.

In Re: State of Texas Ex Rel. David P. Weeks
Jan. 16, 2013; No. AP-76,953

The state seeks the issuance of a writ of mandamus to require the submission of the “intent to promote or assist” theory of the law of parties and to require the submission of the “conspiracy” theory of the law of parties without any manner-and-means restriction. The state need not prove that the defendant should have anticipated the particular method by which a murder was committed to show liability under §7.02(b) in a capital-murder case. The writ is conditionally granted.

Ex Parte Sledge
Jan. 16, 2013; No. AP-76,947

In this subsequent post-conviction application for writ of habeas corpus, the applicant alleges that the trial court lacked jurisdiction to revoke his deferred adjudication community supervision because the capias for his arrest did not issue until three days after his community supervision period expired. The application fails to contain facts that establish either new law, new facts or actual innocence. The application is dismissed.

Hacker v. State
Jan. 16, 2013; No. PD-0438-12

A condition of probation required that the appellant have no contact with his wife. Appellant was prohibited from contacting his wife in person, by mail, by email or by any other means. The condition allowed contact by telephone regarding issues of child custody and when appellant and his wife had an arrangement for appellant to baby-sit their children at his wife’s home while she was at work. Simply occupying his wife’s home when she was not there is not a prohibited communication with his wife nor is it proximity to her. The judgments of the courts below are reversed, and the state’s motion to revoke probation is ordered dismissed.


Clay v. State
Jan. 9, 2013; No. PD-0579-12

A judge signed a search warrant authorizing a blood draw from the appellant based on a telephone conversation with the arresting officer. Texas Code of Criminal Procedure Article 18.01(b) does not necessarily require that the oath always be administered in the corporal presence of the magistrate, so long as sufficient care is taken in the individual case to preserve the same or an equivalent solemnizing function to that which corporal presence accomplishes. The court of appeals judgment that had affirmed the denial of a motion to suppress is affirmed.

Courts of Appeals — Civil


Byrnes v. Ketterman
El Paso Court of Appeals
Jan. 16, 2013; No. 08-12-00224-CV

The court considers a motion to dismiss this appeal, because the appellant refused to answer post-judgment discovery, has failed to pay the associated sanctions, and has failed to either pay the judgment or file a supersedeas bond. Because the appellant failed to comply with the trial court’s orders, the motion is granted, and the appeal is dismissed.

Civil Practice

Schuring v. Fosters Mill Village Community Association
Houston’s 14th Court of Appeal
Jan. 15, 2013; No. 14-12-00250-CV

The appellants appeal the denial of their motion to dissolve a permanent injunction that ordered them to comply with their home’s deed restrictions. The trial court did not abuse its discretion by concluding that the harm of finding an alternative insurer and the expense of installing a compliant roof were not so disproportionate to the benefit of enforcing the covenant as to require dissolving the injunction. The trial court’s judgment is affirmed.

Health Law

Texas State Board of Chiropractic Examiners v. Abbott
Austin Court of Appeals
Jan. 16, 2013; No. 03-11-00735-CV

The Texas State Board of Chiropractic Examiners sued Greg Abbott, attorney general of the state of Texas, seeking a declaration that certain documents in the board’s possession are exempt from the disclosure requirements of the Texas Public Information Act. The trial court rendered summary judgment that the documents were not exempt. The requested documents are exempt from mandatory disclosure under the PIA. The board was not required to release the requestor’s chiropractic records that were contained in an investigation file related to a complaint about a chiropractor licensed by the board. The trial court’s judgment is reversed and rendered.

Courts of Appeals — Criminal

Criminal Law

In the Matter of the Expunction of J.S.
El Paso Court of Appeals
Jan. 16, 2013; No. 08-11-00293-CV

The appellant appeals the trial court’s order modifying his prior order of expunction. The state’s motion and proof at the evidentiary hearing failed to meet the requirements of Texas Rule of Civil Procedure 306a(5) and, as such, the trial court’s jurisdiction was not reinvoked. Appellate courts have the power to declare an order void where the trial court signed it after losing plenary power over the case. The modified order is vacated and the original order is reinstated.