Civil and Criminal

by Judge Bob McCoy g County Criminal Court No. 3

Ask Judge Bob

Judge Bob, what courts are Texas courts of appeal required to follow as to a federal rule of decision?

(“While Texas courts may certainly draw upon the precedents of the Fifth Circuit, or any other federal or state court, in determining the appropriate federal rule of decision, they are obligated to follow only higher Texas courts and the United States Supreme Court.”).

Hanover Cas. V. Seven Acres Jewish Care, 654 S.W.3d 495, 503 (Tex.App.—Houston [14th Dist.] 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)

We never really grow up; we only learn how to act in public.

DANES’ QUOTE OF THE MONTH

A dog is the only thing on this earth that loves you more than he loves himself. —Josh Billings (Henry Wheeler Shaw), American humorist

Criminal Items Of Interest

1.Jury Charge

Under Article 36.14, the trial court is required to give the jury a written charge “setting forth the law applicable to the case.” “As a general matter, definitions for terms that are not statutorily defined are not considered to be the ‘applicable law’ under Article 36.14, and it is thus generally impermissible for the trial court to define those terms in the jury instructions.”

Loving v. State, 630 S.W.3d 284 (Tex.App.—Eastland 2020).

2. Confrontation Clause

The Confrontation Clause bars the admission of out-of-court testimonial statements of a witness unless (1) the witness is unavailable to testify and (2) the defendant had a prior opportunity to cross-examine the witness. Furthermore, the procedural guarantees to confront and cross-examine adverse witnesses applies in both federal and state prosecutions.

Nicholls v. State, 630 S.W.3d 443 (Tex.App.—Eastland 2021).

3. Plain View Doctrine

The plain view doctrine is an exception to the warrant requirement. Under the plain view doctrine, a warrantless seizure by an officer of an item may be reasonable if it comes within his plain view during his lawful presence within a private area.

State v. Watson, 630 S.W.3d 451 (Tex.App.—Eastland 2021).

4. Motion to Suppress

At a suppression hearing, the trial court is the sole and exclusive trier of fact and judge of the witnesses’ credibility, and it may choose to believe or disbelieve all or any part of the witnesses’ testimony.

State v. Negrete, 630 S.W.3d 460 (Tex.App.—Houston [1st Dist.] 2021).

5. Reasonable Suspicion

Reasonable suspicion for a detention exists when a police officer “has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that the person detained is, has been, or soon will be engaged in criminal activity.”

Yoda v. State, 630 S.W.3d 470 (Tex.App.—Eastland 2021).

6. Speedy Trial

The Sixth Amendment to the United States Constitution guarantees the accused in a criminal prosecution the right to a speedy trial. The Texas Constitution provides the same guarantee. Tex. Const. art. 1, § 10. An evaluation of a speedy trial claim includes a consideration of “the length of the delay, to what extent the defendant has asserted his right, and any prejudice suffered by the defendant.”

State v. Lopez, 631 S.W.3d 107 (Tex.Crim.App. 2021).

7. Lesser-included Offenses

An offense is a lesser-included offense if it is “established by proof of the same or less than all the facts required to establish the commission of the offense charged.”

Hernandez v. State, 631 S.W.3d 120 (Tex.Crim.App. 2021).

Civil Items Of Interest

1. Fraudulent Intent

“Intent is a fact question uniquely within the realm of the trier of fact.”Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432,

434 (Tex. 1986).

Nationstar Mortg. LLC v. Barefoot, 654 S.W. 3d 440, 454 (Tex. App.—Houston [14th Dist.] 2021).

2. Damages

Id. Direct damages compensate the plaintiff for the loss that is conclusively presumed to have been foreseen by the defendant from his wrongful act. Id. Consequential damages, on the other hand, result naturally, but not necessarily, from the defendant’s wrongful acts.

Nationstar Mortg. LLC v. Barefoot, 654 S.W. 3d 440, 456 (Tex. App.—Houston [14th Dist.] 2021).

3. Texas Tort Claims Act

A claimant’s subjective knowledge or lack of knowledge of a condition is not relevant to a court’s determination of whether the condition is a special defect.

Kownslar v. City of Houston, 654 S.W.3d 472, 477 (Tex.App.— Houston [14th Dist.] 2022).

4. Texas Tort Claims Act

If the employee is protected from liability by official immunity, the employee is not personally liable to the claimant, and the government retains its sovereign immunity. City of Houston v. Arellano, 654 S.W.3d 483, 486 (Tex.App.— Houston [14th Dist.] 2022).

5. Construing Insurance Contracts

Courts must “examine the entire agreement and seek to harmonize and give effect to all provisions so that none will be meaningless.” “No one phrase, sentence, or section [of a contract] should be isolated from its setting and considered apart from the other provisions.” “Unless the policy dictates otherwise, [courts] give words and phrases their ordinary and generally accepted meaning, reading them in context and in light of the rules of grammar and common usage.”

Hanover Cas. V. Seven Acres Jewish Care, 654 S.W.3d 495, 499 (Tex.App.—Houston [14th Dist.] 2022).

6. Texas Citizens Participation Act

The TCPA was designed to protect a defendant’s rights of speech, petition, and association while protecting a claimant’s right to pursue valid legal claims for injuries caused by the defendant.

Welsh v. River Hollow Association, 654 S.W.3d 505, 507 (Tex. App.—Houston [14th Dist.] 2022).

7.Offensive-use Doctrine

The offensive-use doctrine prohibits a plaintiff from maintaining evidentiary privileges that protect from discovery outcome-determinative information not otherwise available to a defendant. See id. We outlined three factors relevant to this determination; (1) the party asserting the privilege must be seeking affirmative relief; (2) the privileged information is such that, if it is believed by the fact finder, in all probability it would be outcome determinative of the cause of action asserted; and (3) the disclosure of the confidential communication is the only means by which the aggrieved party may obtain the evidence. Id.

Wagner v. Exxon Mobil Corp., 654 S.W.3d 613, 636 (Tex. App—Houston [14th Dist.] 2022).

Legal Quote Of The Month

Let us reform our schools, and we shall find little reform needed in our prisons.

—John Ruskin

Traditional Irish Law

If the doctor heals your wound, but it breaks out anew because of his carelessness, neglect, or gross want of skill, he must return the fee you paid. He must also pay you damages as if he himself had wounded you.

OLD NEWS Police Rev Up

Fort Worth hired its first motorcycle policeman on June 1, 1909, 19-year-old Henry Lewis, who piloted a five-horsepower Indian motorcycle. Lewis set up the city’s first speed trap, in the 1100 block of West Seventh Street.

On his first day, he caught more than two dozen motorists exceeding the 10-mph speed limit. He quit for the day when he ran out of tickets. Lewis became police chief in 1933 and retired in 1937. g