Snippets

Civil and Criminal

by Judge Bob McCoy g County Criminal Court No. 3

Ask Judge Bob

Judge Bob, what makes a case “moot”?

A case is moot when there is no longer “a justiciable controversy between the parties or when the parties cease to have ‘a legally cognizable interest in the outcome.’” If events make it impossible for the court to grant the relief requested or otherwise affect the parties; rights or interests, the case is moot. Waterhouse v Harrison, 658 S.W.3d 737, 739 (Tex.App.—El Paso 2022).

THE PACK’S MONTHLY PARAPROSDAKIAN

(a figure of speech in which the latter part of a sentence or phrase is surprising or unexpected; frequently humorous)

Being smart is knowing how to get out of a tough situation. Being wise is not getting into it in the first place.

THE PACK’S QUOTE OF THE MONTH

The most affectionate creature in the world is a wet dog.

—Ambrose Bierce

Criminal Items Of Interest

1.Evidence of Pain

A factfinder may infer that a victim actually suffered physical pain, and no witness – including the victim – need testify that the victim felt pain. A factfinder is “free to ‘use common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from the evidence.’” Thus, a “fact finder may infer that a victim actually felt or suffered physical pain because people of common intelligence understand pain and some of the natural causes of it.” This includes inferring physical pain from an altercation itself even without direct evidence.

Coleman v. State, 631 S.W.3d 744 (Tex.App.—Houston [14th Dist.] 2021).

2. Challenge for Cause

Generally, in order to demonstrate harm from the denial of challenges for cause, the record must show that Appellant (1) made a clear and specific challenge for cause against a venireperson, (2) used a peremptory challenge on the complained of venireperson, (3) exhausted all remaining peremptory challenges, (4) requested and was denied additional strikes, and (5) identified on the record the objectionable venireperson whom he would have removed with the additional strike but who remains on the juror list and then actually sits on the jury. Deere v. State, 631 S.W.3d 762 (Tex.App.—Eastland 2021).

3. Police Interactions

Interactions between law enforcement officers and citizens are often characterized as either consensual encounters, investigative detentions, or arrests. Arrests require either a warrant or probable cause, while investigative detentions constitute brief seizures that are less intrusive than arrests and only require reasonable suspicion. Consensual encounters do not trigger any Fourth Amendment protections, so a law enforcement officer does not need probable cause or reasonable suspicion to initiate a consensual encounter. Monjaras v. State, 631 S.W. 3d 794 (Tex.App.—Houston [1st Dist.] 2021).

4. Prejudicial Evidence

All evidence tends to be prejudicial to one party or the other. Only “unfair” prejudice provides the basis for exclusion of relevant evidence. Prejudice is “unfair” if it has an “undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.”

Martinez v. State, 633 S.W.3d 698 (Tex.App.—Houston [14th Dist.] 2021).

5. Delivery of Drugs

The following factors are relevant to the question of intent to deliver: “(1) the nature of the location at which the defendant was arrested; (2) the quantity of controlled substance in the defendant’s possession; (3) the manner of packaging; (4) the presence of drug paraphernalia…; (5) the defendant’s possession of large amounts of cash; and (6) the defendant’s status as a drug user.” Biggers v. State, 634 S.W.3d 244 (Tex.App.—Texarkana 2021).

6. Rule of Optional Completeness

Tex.R.Evid. 107 is an exception to the hearsay rule, and “is designed to reduce the possibility of the jury receiving a false impression from hearing only a part of some act, conversation, or writing.” Additionally, the rule of optional completeness requires the omitted portions to be “on the same subject” and “necessary” to make the earlier admitted evidence fully understandable. Popp v. State, 634 S.W.3d 375 (Tex.App.—El Paso 2021).

7. Speedy Trial

The Sixth Amendment to the U.S. Constitution guarantees the accused in a criminal prosecution the right to a speedy trial. The right to a speedy trial attaches once a person is either arrested or charged. Courts determine a speedy trial claim on an ad hoc basis by analyzing and weighing four factors: (1) the length of the delay, (2) the State’s reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) the prejudice to the defendant because of the length of the delay. State v. Conatser, 645 S.W.3d 925 (Tex.App.—Dallas 2022).

Civil Items Of Interest

1. Defense of Limitations

To achieve summary judgment on the defense of limitations, “The defendant must (1) conclusively prove when the cause of action accrued, and (2) negate the discovery rule, if it applies and has been pled or otherwise raised.”

Gill v. Hill, 658 S.W.3d 618, 623 (Tex.App.—El Paso 2022).

2. Immunity from Suit

A governmental employee responding to an emergency situation retains immunity from suit except for actions taken with conscious indifference or reckless disregard for the safety of others. “Thus, the claimant must show that the operator of the emergency vehicle committed acts or omissions that the driver knew or should have known posed a high degree of risk of serious injury or knew the relevant facts but did not care about the result.” City of Houston v. Rodriguez, 658 S.W. 3d 633, 643 (Tex.App.—Houston [14th Dist.] 2022).

3. Damages

“Consequential damages are those that result naturally, but not necessarily, from the defendant’s breach, and are not the usual result of the wrong.” “In contrast, direct damages are those that the breaching party is conclusively presumed to have foreseen as a result of its breach because they are the necessary and usual result of, and flow naturally and necessarily from, that wrongful act.”

Totalenergies v. Kinder Morgan Petcoke, 658 S.W.3d 647, 679 (Tex.App.—Houston [14th Dist.] 2022).

4. Healthcare Liability Claims

“The purpose of the expert report requirement in healthcare liability claims is to deter frivolous claims, not to dispose of claims regardless of their merits.”

Golucke v. Lopez, 658 S.W.3d 686, 701 (Tex.App.—El Paso 2022).

5. Jurisdiction

In general, when a probate court reaches out and transfers a matter pending in a district or county court to its court in accordance with the Estates Code, the original court loses jurisdiction to take any further action in the matter. The original court is only deprived of jurisdiction if the probate court acted properly in entering its transfer order in the first instance. Thus, if the order was void for any reason, the original court may retain jurisdiction to hear the parties’ claims.

Aguilar v. Morales, 658 S.W.3d 702, 710 (Tex.App.—El Paso 2022).

6. Jurisdiction

That a consumer abuses a defendant’s product by using it in an application it was not designed for or in a manner the defendant did not intend, thereby causing injury, is not jurisdictionally relevant.

Hause v. LG Chem, LTD., 658 S.W.3d 714, 731 (Tex.App.—El Paso 2022).

7.

Statutes of Limitations

Statutes of limitations exist “to compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend while witnesses are available and the evidence is fresh in their minds.” A party asserting a limitations defense must allege it in its answer to the plaintiff’s pleadings. TEX. R. Civ. P. 94. In addition, to avoid a limitations defense, the plaintiff must exercise diligence in serving the defendant with process prior to the expiration of the limitations period. Cavazos v. Stryker Sales Corp., 658 S.W.3d 749, 752 (Tex.App—Corpus Christi 2022).

Legal Quote Of The Month

Peace is more important than all justice; and peace was not made for the sake of justice, but justice for the sake of peace —Martin Luther

Old News And A Quote

On September 21, 454 A. D., Roman General Flavius Aetius presented a financial report to the Emperor of the Western Roman Empire, Valentinian III. Aetius had successfully kept barbarian enemies at bay for over 20 years, including defeating Attila in 451 in Gaul, and was held universally in high esteem as the hero of the empire, or as he would later be called, “The Last True Roman”. When Aetius finished his presentation, Valentinian, jealous of the kudos heaped upon Aetius, leaped from his throne and stabbed Aetius in the temple. He then extolled to those present that he had done well by killing his general. Present was Sidonius Appolinaris, who observed “Well or not, I do not know, but I do know that YOUR LEFT HAND HAS CUT OFF YOUR RIGHT.” g

Welcome

New Members of the TCBA:

Attorneys

Daniel Basham

Jonathan Boggus

William Brown

Kassi Burns

Christopher Cava

Darryl Cleveland

Christiana Doherty

Madison Easterlin

Lara Fernandes

Jackson Field

Mike Forni

Calvin Freas

Aaron Genthe

Alexa-Rae Gist

Taylor Harrington

Elizabeth Harris

Phillip Hecker

Patrick Lercara

Desiree Malone

John Minahan

Brennon Mitchell

Donald Nix

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Dean Roggia

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Mac Smith

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Paralegal

Sarah Brant

Students

Ashley Easaw

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