Snippets

Civil and Criminal

Co-Editor Judge Carey Walker, County Criminal Court No. 2

by Judge Bob McCoy g County Criminal Court No. 3

ASK JUDGE BOB

Judge Bob, can the prevailing party be awarded attorney’s fees in a trespass-to-try-title claims?

No. Trespass-to-try-title claims are exclusively governed by statute, and that statutory scheme does not generally include a provision for the award of attorney’s fees. Eggemeyer v. Huges, 621 S.W.3d 883, 893 (Tex.App.—El Paso 2021.

ASK JUDGE BOB, MOSES, AND NOAH

Judge Bob, Moses, and Noah, now that the legislature has adjourned from its regular session, are there any laws involving animals that are noteworthy?

Yes. SB 48, an animal possession ban bill, amends current law relating to conditions of community supervision for defendants convicted of certain animal cruelty crimes. The law will give judges the discretion to prevent persons from possessing an animal if they are sentenced to community supervision for attacking an assistance animal, cruelty to non-livestock animals, dog fighting, or cockfighting. The law also permits judges to require psychological counseling as a condition of such sentences.

Moses

Noah

MOSES’ AND NOAH’S MONTHLY PARAPROSDAKIAN

(a figure of speech in which the latter part of a sentence or phrase is surprising or unexpected; frequently humorous) Laughter is the best medicine, if you don’t have insurance.

DANES’ QUOTE OF THE MONTH

Don’t accept your dog’s admiration as conclusive evidence that you are wonderful. —Ann Landers

CRIMINAL ITEMS OF INTEREST

1. Rule of Optional Completeness

statement, or act.” Rather, for evidence to be admissible under this rule, “the omitted portion of the statement must be ‘on the same subject’ and must be ‘necessary to make it fully understood.’” Prince v. State, 574 S.W.3d 561 (Tex.App.—Houston [1st Dist.] 2019).

2. Assault of Public Servant

Assault of a public servant requires proof of misdemeanor assault and that (1) the complainant was a public servant; (2) the actor knew that the complainant was a public servant; (3) the complainant was discharging an official duty when he was assaulted; and (4) the official duty was being discharged lawfully. Cuevas v. State, 576 S.W.3d 398 (Tex.Crim.App. 2019).

3. Excited Utterance

For the excited utterance hearsay exception to apply, three requirements must be shown: (1) the statement must be the product of a startling occurrence that produces a state of nervous excitement in the declarant and renders the utterance spontaneous, (2) the state of excitement must still so dominate the declarant’s mind that there is no time or opportunity to contrive or misrepresent, and (3) the statement must relate to the circumstances of the occurrence preceding it. Villanueva v. State, 576 S.W.3d 400 (Tex.App.—Houston [1st Dist.] 2019).

4. Plain-view Doctrine

“In certain circumstances a warrantless seizure by police of an item that comes within plain view during their lawful presence in a private area may be reasonable under the Fourth Amendment.” “For a plain-view seizure to be lawful, the officer must have had lawful authority to be in the location from which he viewed the item, and the incriminating nature of the item must be immediately apparent.” Tilghman v. State, 576 S.W.3d 449 (Tex.App.—Austin 2019).

5. Jury Charge

When a defendant does not object to an erroneous charge, reversal is required only if the error results in egregious harm. Egregious harm is established when the erroneous jury instructions affected “the very basis of the case,” “deprived the defendant of a valuable right,” or “vitally affected a defensive theory.” The analysis takes into account four factors: (1) the entire jury charge; (2) the state of the evidence, including contested issues and the weight of the probative evidence; (3)

the argument of counsel; and (4) any other relevant information revealed by the trial record as a whole. De La Luz Torres v. State, 570 S.W.3d 874 (Tex.App.—Houston [1st Dist.] 2018).

6. First Amendment

The First Amendment right to freedom of speech includes the right to publish and distribute writings while remaining anonymous. “Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation – and their ideas from suppression – at the hand of an intolerant society.” Ex Parte Odom, 570 S.W.3d 900 (Tex.App.—Houston [1st Dist.] 2018).

7. New Trial

A trial court must grant a defendant’s motion for new trial if material evidence favorable to the accused has been discovered since trial. This showing requires proof that (1) the defendant did not know about the newly discovered evidence until after trial; (2) the defendant’s failure to discover the new evidence before then did not result from a lack of due diligence; (3) the new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and probably will bring about a different result in a new trial. Gutierrez v. State, 602 S.W.3d 17 (Tex.App.—Houston [14th Dist.] 2020).

CIVIL ITEMS OF INTEREST

1. Temporary Injunction Order

Here, the trial court’s decision to modify the temporary injunction order by vacating the trial date indefinitely pending the resolution of this appeal, unfortunately, has the effect of removing the trial setting from the injunction order. Absence of a date setting trial is a fatal defect for a temporary injunction order rendering the injunction order void. Danbill Partners, L.P. v. Sandoval, 621 S.W.3d 738, 752 (Tex. App.—El Paso 2020).

2. Waiver

Waiver is an affirmative defense, and the party asserting it has the burden to both plead and prove it. Matter of S.E.J., 621 S.W.3d 778, 784 (Tex.App.—El Paso 2021).

3. Modification of a Possession Order

The trial court has broad discretion in its determination, as it is in the best position to assess the evidence based on its firsthand view of the witnesses, testimony, and evidence; this Court may not substitute its judgment for that of the trial court. McKey v. Stallings, 621 S.W.3d 829, 832 (Tex.App.—El Paso 2021). tion to the general at-will employment doctrine in Texas to protect employees whose employers ask them to act illegally, and when their refusal to do so results in their termination.

To succeed on a Sabine Pilot claim, a plaintiff must prove she refused her employer’s request to perform an illegal act, and her refusal was the sole cause of her termination. Herrera v. Resignato, 621 S.W.3d 835, 841 (Tex.App.—El Paso 2021).

5. Quantum Meruit

The elements of quantum meruit are: (1) valuable services were rendered or materials furnished; (2) for the person sought to be charged; (3) those services and materials were accepted by the person sought to be charged, and were used and enjoyed by him; and (4) the person sought to be charged was reasonably notified that the plaintiff performing such services or furnishing such materials was expecting to be paid by the person sought to be charged. Clinton v. Gallup, 621 S.W.3d 848, 851 (Tex.App.—Houston [14th Dist.] 2021).

6. Sworn Account

The elements of suit on a sworn account are: (1) the sale and delivery of merchandise or performance of services; (2) that the amount of the account is “just,” that is, the prices charged are pursuant to an express agreement, or in the absence of an agreement, that the charges are usual, customary, or reasonable; and (3) that the outstanding amounts remain unpaid. Clinton v. Gallup, 621 S.W.3d 848, 851 (Tex.App.—Houston [14th Dist.] 2021).

LEGAL QUOTE OF THE MONTH

A saying in the Inner Temple: - Life at the bar is not a bed of roses. It is all roses and no bed, or all bed and no roses. —Philip Septimus Pitt

QUOTE OF THE MONTH

Start by doing what is necessary; then do what is possible; and suddenly, you are doing the impossible. —St. Francis

OLD NEWS

A New Casa

In 1936 Broadway’s Billy Rose orchestrated the original Casa Manana debut. But in July 1958, Fort Worth hailed its new Casa: a half-million-dollar aluminum-covered geodesic dome designed by R. Buckminster Fuller, built just north of the original outdoor venue. Inside was the country’s first permanent theater-in-the-round, with seating for 1,800. Couples paid $25 to see the opening-night production of “Can-Can,” starring Deedy Irwin and Dick Smart. The production, reported the Star-Telegram, was saucy: “Enough bare skin was shown to give the bald-headed row snow blindness.” g