Snippets

Civil and Criminal

by Judge Bob McCoy g County Criminal Court No. 3

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

ASK JUDGE BOB

Judge Bob, if I prove breach of contract, do I also have to prove damages in order to be eligible for attorney’s fees?

Yes. “To recover fees under section 38.001, (1) a party must prevail on a cause of action for which attorney’s fees are recoverable, and (2) recover damages.” Boucher v. Thacker, 609 S.W.3d 206, 217 (Tex. App.—Texarkana 2020).

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.

Moses

Noah

DANES’ QUOTE OF THE MONTH

The dog has seldom been successful in pulling man up to its level of sagacity, but man has frequently dragged the dog down to his. —James Thurber

CRIMINAL ITEMS OF INTEREST

1. Bail

The primary purpose of setting bail, both pretrial and postappeal, “is to secure the presence of the accused.” Foreman v. State, 565 S.W.3d 371 (Tex. App.—Houston [14th Dist.] 2018).

2. Jury Argument

The purpose of closing argument is to facilitate the jury in properly analyzing the evidence presented at trial so that it may “arrive at a just and reasonable conclusion based on the evidence alone, and not on any fact not admitted in evidence.” Proper jury argument generally falls within one of four areas: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to an argument of opposing counsel, and (4) plea for law enforcement. Milton v. State, 572 S.W.3d 234 (Tex. Crim. App. 2019). a challenge for cause, a party must show that he: (1) used all of his peremptory strikes; (2) asked for and was refused additional peremptory strikes; and (3) was then forced to take an identified, objectionable juror whom the party would not have otherwise accepted had the trial court granted his challenge for cause (or had the trial court granted him an additional peremptory challenge to strike the juror). Harris v. State, 572 S.W.3d 325 (Tex. App.—Austin 2019).

4. Victim Impact Evidence

When considering the admissibility of victim-impact evidence, the trial court must consider these factors: “(1) how probative is the evidence; (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent’s need for the evidence.” Gilbert v. State, 575 S.W.3d 848 (Tex. App.—Texarkana 2019).

5. Confrontation Clause

The right to confrontation under the Sixth Amendment does not apply during revocation proceedings. By its own terms, the Confrontation Clause applies only to criminal prosecutions, and a probation revocation, whether it follows “regular” probation or deferred adjudication probation, is not a stage of criminal prosecutions. Olabode v. State, 575 S.W.3d 878 (Tex. App.—Dallas 2019).

6. Expert Witness

Qualifying a witness as an expert normally implicates a twostep procedure. First, it must be shown that the witness has a sufficient background in a particular field, which background encompasses the matter on which the witness is to give an opinion. The second step gauges the relationship between the subject matter at issue and the expert’s familiarity with it; that is, it must be shown that the expert’s background is “tailored to the specific area of expertise in which the expert desires to testify.” Carter v. State, 575 S.W.3d 892 (Tex. App.—Amarillo 2019).

7. Extraneous Offenses

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Webb v. State, 575 S.W.3d 905 (Tex. App.—Waco 2019).

1. Statutory Construction

We review issues involving statutory interpretation de novo. When determining the meaning of a statute, our primary objective is to give effect to the intent of the Legislature. To determine the Legislature’s intent, we start with the plain language of the statute before resorting to rules of construction. We view the statute as a whole rather than in isolated provisions and apply ordinary meanings to any undefined words unless a different meaning is supplied by legislative definition, is apparent from the context, or the plain meaning leads to absurd results. Yates Energy Corp. v. Broadway Nat’l Bank, 609 S.W.3d 140, 147 (Tex. App.—San Antonio 2018).

2. Property Code 5.028-.029 Correction Instrument

We hold the provision is triggered and a correction instrument making a material change must be executed by a party’s heirs, successors, or assigns, as opposed to the original parties of the recorded instrument, if the property interest conveyed in the original instrument has been assigned or conveyed by an original party to that party’s heirs, successors, or assigns. Yates Energy Corp. v. Broadway Nat’l Bank, 609 S.W.3d 140, 148 (Tex. App.—San Antonio 2018).

3. Appeals

An appellate court is prohibited from deciding moot controversies. In re Fedex Ground Package Sys., Inc., 609 S.W.3d 153, 158 (Tex. App.—Houston [14th Dist.] 2020).

4. Parental Rights Termination

A parent’s inability to provide adequate care for a child, lack of parenting skills, and poor judgment may be considered when looking at the child’s best interests. A parent’s lack of motivation to learn how to improve parenting skills is evidence supporting the best-interest determination. In re L.W., 609 S.W.3d 189, 204 (Tex. App.—Texarkana 2020).

5. Parental Rights and Relocation of Child

The Texas Supreme Court set out the following additional factors that may be relevant to the determination of a child’s best interest when considering a parental relocation: (1) the reasons for and against the move, (2) the education, health, and leisure opportunities afforded by the move, (3) the accommodation of the child’s special needs or talents, (4) the effect on extended family relationships, (5) the effect on visitation and communication with the noncustodial parent, (6) the noncustodial parent’s ability to relocate, and (7) the child’s age. Interest of D.L.N., 609 S.W.3d 237, 245 (Tex. App.—Texarkana 2020).

6. Homestead Rights

foreclosure, because such funds or property are merely held by the acquirer in trust for the true owner; thus, when wrongfully acquired funds are used to purchase real property, no homestead rights can attach to that property. Deluxe Barber School, LLC v. Nwakor, 609 S.W.3d 282, 298 (Tex. App.—Houston [14th Dist.] 2020).

LEGAL QUOTE OF THE MONTH

The law: It has honoured us; may we honour it. —Daniel Webster

COWBOY LOGIC

Be sure and taste your words before you spit them out.

OLD NEWS

The Stock Show Gets Its First Rodeo

Finals were held in the world’s first indoor rodeo March 16, 1918, staged by Fort Worth cattle and horse dealers in the Northside Coliseum during the Southwestern Exposition and Fat Stock Show. More than 20,000 spectators turned out to watch cowboys compete for the $3,000 purse in the six-day event. g

Please Remember

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