Civil and Criminal

by Judge Bob McCoy g County Criminal Court No. 3

Ask Judge Bob

Judge Bob, where is the periodic-payments statute located?

It can be found in Texas Civil Practice and Procedures Code § 74.503 and provides that at the request of a defendant physician or health care provider or claimant, the court shall order that medical, health care, or custodial services awarded in a health care liability claim be paid in whole or in part in periodic payments rather than by a lump-sum payment.

Columbia Valley Healthcare Sys. v. A.M.A., 654 S.W.3d 135, 140 (Tex. 2022).

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)

The difference between fiction and reality is that fiction has to make sense.

DANES’ QUOTE OF THE MONTH

Charley likes to get up early, and he likes me to get up early too. And why shouldn’t he? Right after his breakfast he goes back to sleep.

—John Steinbeck, Travels with Charley

Criminal Items Of Interest

1.TRE

403

In conducting a rule 403 analysis, courts must balance (1) the inherent probative force of the proffered evidence and (2) the proponent’s need for that evidence, against (3) any tendency of the evidence to suggest a decision on improper basis, (4) any tendency to confuse or distract the jury from the main issues, (5) any tendency to be given undue weight by the jury, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or be cumulative of other evidence.

Metcalf v. State, 631 S.W.3d 189 (Tex.App.—Houston [14th Dist.] 2020).

2. Reasonable Suspicion

Reasonable suspicion exists if an officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead the officer to reasonably conclude that a particular person is, has been, or soon will be engaged in criminal activity.

Villarreal v. State, 631 S.W.3d 198 (Tex.App.—Houston [14th Dist.] 2020).

3. Pretrial Identification

To determine the admissibility of a pretrial identification, we use a two-step analysis asking (1) whether the pretrial procedure was impermissibly suggestive; and (2) if so, whether the suggestive pretrial procedure gave rise to a very substantial likelihood of irreparable misidentification.

McGuire v. State, 631 S.W.3d 222 (Tex.App.—Houston [14th Dist.] 2020).

4. Motion for Mistrial

The traditional and preferred procedure for seeking a mistrial involves three steps: (1) objecting to a prejudicial event, if possible; (2) requesting an instruction that the jury disregard the prejudicial event; and (3) requesting a mistrial if the moving party believes that the instruction to disregard is insufficient.

Dupuy v. State, 631 S.W.3d 233 (Tex.App.—Houston [14th Dist.] 2020).

5. Relevant Evidence

Evidence is relevant if it has any tendency to make the existence of any consequential fact more or less probable than it would be without the evidence. To be relevant, evidence must be both material – that is, it must be offered for a proposition that is of consequence to the determination of the case – and probative, such that it makes the existence of the fact more or less probable than it would otherwise be without the evidence.

Boudreaux v. State, 631 S.W.3d 319 (Tex.App.—Houston [14th Dist.] 2020).

6. Confrontation Clause

“The threshold question in any Confrontation Clause analysis is whether the statements at issue are testimonial or nontestimonial in nature.” An out-of-court statement may be testimonial when the surrounding circumstances objectively indicate that the primary reason the statement was made was to establish or prove past events that would be potentially relevant to a later criminal prosecution. Consequently, statements are testimonial if the statements are made under circumstances that would lead an objective witness to reasonably believe that the statements would be available for use at a later trial. Smith v. State, 631 S.W.3d 484 (Tex.App.—Eastland 2021).

7. Defense of Necessity

Necessity is a confession-and-avoidance defense requiring the defendant to admit to his otherwise illegal conduct. To be entitled to a defensive instruction for necessity, a defendant must put on evidence that “essentially admits to every element of the offense, including the culpable mental state.” In other words, a defendant cannot both invoke necessity and flatly deny the charged conduct. Maciel v. State, 631 S.W.3d 720 (Tex.Crim.App. 2021).

Civil Items Of Interest

1. Lump-Sum Payment

It is an abuse of discretion to impose a lump-sum payment without evidence supporting the need for an immediate payment of a lump-sum payment. Columbia Valley Healthcare Sys. v. A.M.A., 654 S.W.3d 135, 143 (Tex. 2022).

2. Cross-Motions for Summary Judgment

On cross-motions for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex.2000). When the trial court grants one motion and denies the other, the reviewing court must determine all questions presented and render the judgment that the trial court should have rendered. City of Conroe v. Atty. General of Texas, 654 S.W. 3d 155, 162 (Tex.App.—Austin 2022).

3. Official Immunity

“Official immunity is an affirmative defense that ‘inures to all governmental employees who perform discretionary functions in good faith and within their authority.’” That is, a “governmental employee is entitled to official immunity for (1) the performance of discretionary duties (2) that are within the scope of the employee’s authority, (3) provided that the employee acts in good faith.” University of The Incarnate Word v. Redus, 654 S.W.3d 169, 173 (Tex.App.—San Antonio 2022).

4. Attorney-Client Relationship

“The legal relationship of attorney and client is purely contractual.” “The contract of employment may be implied by the conduct of the two parties.” “All that is required is that the parties explicitly or by their conduct manifest an intention to create the attorney-client relationship.” “An attorney-client relationship may be established either expressly or impliedly from the conduct of the parties.” Hooten v. Yeager, 654 S.W.3d 185, 189 (Tex.App.—Texarkana 2022).

5. TCPA

We disagree with Doe that here exists a common law or statutory mechanism through which a completely anonymous TCPA movant may invoke a court’s authority to obtain affirmative, merits-based, and dispositive relief. Allison Publications, LLC v. Doe, 654 S.W.3d 210, 218 (Tex.App.—Fort Worth 2022).

6.

Health Care

A hospital is an institution licensed to provide health care, but only a licensed doctor can provide medical care. Dunnick v. Marsillo, 654 S.W.3d 224, 232 (Tex.App.—Austin 2022).

7. TUFTA

TUFTA provides a comprehensive statutory scheme through which a creditor may seek recourse for a fraudulent transfer of assets or property. “TUFTA is ‘designed to protect creditors from being defrauded or left without recourse due to the actions of unscrupulous debtors.’” TUFTA aims “to prevent debtors from prejudicing creditors by improperly moving assets beyond their reach.”

LMP Austin Eng. V. Lafayette Eng. Apts., 654 S.W.3d 265, 278 (Tex.App—Austin 2022).

Legal Quote Of The Month

The law of England is very strange: it cannot compel anyone to tell the truth … But what the law can do is to give you seven years for not telling the truth.

—Mr. Justice Darling

Words Of Wisdom

Go to the ant, you slacker. Observe its ways and become wise. Proverbs 6:6

Old News

Where the Boom Began

Big oil struck in West Texas – in such places as Ranger in 1917 and Desdemona and Burkburnett in 1918 – brought boom times to Fort Worth.

In September 1918, Tom Dees of the Hog Creek Oil Company struck oil in Desdemona, an agricultural settlement of some 300 people in southeastern Eastland County. The town soon teemed with speculators and workers. Tents and shacks were quickly erected to house a population that grew to an estimated 16,000. g

Texas Lawyers For Texas Veterans Tarrant County Chapter

By Sarah Hall Hoffman, Pro Bono Programs Director

TLTV Committee: Making a Difference for Veterans in Need!

If you are passionate about providing legal assistance to veterans in need and have creative solutions and ideas to share, consider joining the TLTV committee, which meets on the third Wednesday of each month from 12:00 p.m. to 1:00 p.m.

Looking for a reason to give your time? Read what several veterans who were assisted have to say about TLTV:

What Veterans Participants are Saying

Friday, June 16, 2023

Friday, July 21, 2023

Friday, August 18, 2023

Clinics are from 1 p.m.– 4 p.m.

Everyone I spoke with from TLTV was very polite and helpful, and their phone “

Veterans Affairs Outpatient Facility sarah@tarrantbar.org for more information.

Edward Michael Sheehan

1950–2023

ike Sheehan, 73, passed away peacefully at home Saturday, April 1, 2023 after a courageous battle with leukemia.

Mike was born and raised in Fort Worth, Texas and spent the majority of his life there. After graduating Paschal High School in 1968, he joined the U.S. Marine Corps. He proudly served his country as a Sergeant in Vietnam. Upon leaving the Marine Corps in 1972, Mike furthered his education and graduated from Texas Tech University with honors in 1976 and The University of Texas School of Law in 1979.

Mike spent his entire legal career practicing in Fort Worth and Tarrant County. He began as an Assistant District Attorney with the Tarrant County District Attorney’s Office. From there, he was appointed Assistant United States Attorney in the Northern District of Texas. Mike was an admired and well-respected leader in the legal community, both locally and worldwide. His illustrious career involved time at the law firms of Cantey Hanger LLP, Kelly Hart & Hallman LLP, and Thompson & Knight LLP. It was at Kelly Hart & Hallman that Mike met and married the love of his life, Carol.

Mike was a force of nature, determined to provide for his family and give them the life he felt they deserved. Anyone

Mwho knew Mike knew that he was the most loving spouse and father a family could ask for. His family meant more to him than anything else in the world, something he often mentioned. The family spent a great deal of time at their lake house on Possum Kingdom Lake, where Mike loved to take Carol, the kids, and their friends skiing and tubing. He loved his motorcycles and classic Corvettes. He was an avid Civil War and Abraham Lincoln history buff and had an extensive collection of books and memorabilia. Mike was an even greater fan of the Texas Rangers, and he and the family enjoyed many decades of season ticket seats.

Mike was preceded in death by his father, Dennis and his mother, Jean. He is survived by his wife, Carol, their two children, Meghan and her husband Ross Prokop and Brian and his wife Amy Sheehan. He is also survived by his grandson Lincoln and his brother Dennis and his wife Diane, plus an untold plethora of friends and colleagues.

Memorials can be made in his honor to the U.S. Marine Corps Toys for Tots Program or Cook Children's Medical Center in Fort Worth, Texas. Both causes were very near and dear to Mike’s heart. g

Published by Star-Telegram on April 9, 2023.

Judge Albert Lee White Jr.

1934–2023

Judge Albert Lee White, Jr. was born February 5, 1934 to Albert Lee and Ruth Myers White in Lepanto, Arkansas. He died from cancer on April 11, 2023.

Albert attended Pascal High School where his talent as a basketball player was nurtured by his coach Charlie Turner who secured a scholarship for him to Baylor to play ball. Coach Turner was like a father to Albert.

During his freshman year at Baylor, Albert and Mary Jane were campus royalty – the star basketball player and beauty queen. Mary Jane Cowden asked him out on their first date on a “backwards” weekend. She had such a good time that she called him for the next night, but she was immediately jealous. He had already been invited by a rival beauty. They dated for three years.

He was drafted into the army, married Mary Jane and they spent the first two years of married life at Fort Bliss. He played basketball for the Army then returned to Baylor Law School, graduating with his Doctor of Jurisprudence degree in 1960.

His first job was working for the City Attorney of Fort Worth, then he branched out to open his own office. He struggled financially because he took in many low income clients and “underdogs", as he called them. After joining a law firm, and with Mary Jane's encouragement, he began to look into politics. He ran for state representative, then worked on an election campaign for Eugene Locke for Governor. Next he headed the election campaign for Dolph Briscoe who won the governorship in 1973. Dolph increased the number of state court districts, appointing Albert to the new 236th District as State District judge. He served until his retirement in 1994.

During his years working in Fort Worth, you would find him on his lunch hour challenging lawyers on the basketball court at the downtown YMCA.

He bought his first piece of ranchland in Stephenville in 1970. He spent weekends building fences, expanding his empire and enjoying the peace and pace of the country.

In 1967, Albert and Roy Bateman engineered a merger between two churches, Westcliff Baptist and Evans Avenue Baptist in Fort Worth. This was the beginning of Southcliff Baptist Church. Albert served as Trustee and on the finance committee, and supported Mary Jane’s ministries there. Their closest friends were families at Southcliff and every spring they hosted a picnic at the ranch for their Sunday School department.

In 2008, he moved permanently to his ranch in Stephenville. He worked hard, improving and expanding his cattle herd and watching his beloved Baylor Bears on TV. At that time he took over full care of Mary Jane in her final years with dedication and love. She passed away in 2012.

He is remembered as gregarious, generous, (especially to the little man), and with a down-to-earth WISDOM that was always right on point. No one could work a room like Judge, whether at Three-Way Feed store for coffee, the Cowboy Church or Jake and Dorothy's cafe where they had memorized his order.

He was preceded in death by his parents, Albert and Ruth Myers White, wife, Mary Jane Cowden White, sister Mary Eleanor Sanders and husband Jim, and granddaughter

Elizabeth Claire Shaw.

He is survived by his sister Ruth Jeannette Grindstaff of Ballinger, Texas, daughter Mollie Shaw and husband Hunter Shaw, son Coleman White and Diana Garrison, son Trey White and wife Debbie Parker White. Grandchildren include Zachary White and wife Erin Shanklin White, Lee White and wife Nicole, Katherine Narvaez and husband Ben, Parker White, Hunter Owen Shaw III, Cameron Shaw, Madeline Shaw, Cary Shaw, and Hannah Shaw. Great-grandchildren include Jaxon White, Caden White, Griffin White and Evan White.