Opinion Released February 8, 2018

Ex parte Isaiah Cardenas, No. 13-17-00424-CR (Opinion by Justice Rodriguez; Panel Members: Justices Benavides and Longoria)

In this appeal from an habeas corpus proceeding and order setting bond, the Thirteenth Court of Appeals analyzed whether the factors established in the Texas Court of Criminal Procedure and by the Court of Criminal Appeals support a bond of $750,000.

On June 11, 2017, 17-year-old Isaiah Cardenas allegedly broke into the home of Rachael Mussett, a 61-year-old woman. Cardenas stabbed and beat Mussett, sexually assaulting her and ultimately strangling her to death. Cardenas the stole Mussett’s hydrocodone prescription and her car before he went to the home of his friend, Michael Tracy, to help clean the blood off his shoes and clothing. Cardenas told Tracy that he had “broken into an old white lady’s house and punched her in the face.” Tracy’s mother, Rexsanna Tracy, then called the Sheriff’s Officer to report the crime.

On June 13, a warrant was issued for Cardenas’s arrest on charges of capital murder, aggravated sexual assault, burglary of a habilitation with the intent to commit a felony, and theft of a motor vehicle. The warrant set “no bond.”

On July 11, Cardenas filed an application for writ of habeas corpus, requesting release on a reasonable bond. Cardenas suggested $75,000, and the State requested no bond, or alternatively, $750,000 per offense. Neither Cardenas nor the State requested conditions on the bond.

The trial court held a hearing on the issue. Cardenas’s mother Rita Martinez testified for the defense, as did a 63-year-old family friend with whom Cardenas had previously lived.

Martinez testified that Cardenas had a marijuana and alcohol problem, although she added he also used “harder narcotics.” She stated that both she and Cardenas’s father (her ex-husband) lived in Victoria, although Martinez was remarried to a man living in India, whom she went to visit every two months. She affirmed that she, Cardenas’s father, and the extended family could pool their resources to post a $75,000 bond. She further affirmed that the family would be able to support and supervise Cardenas if he were released on bond, but admitted on cross examination that she could not force Cardenas to do something he did not want to do. Martinez further acknowledged that Cardenas had been arrested previously for providing the police with a fake ID and had run from the police, but insisted that the family did not have a history of criminal activity.

Cardenas’s family friend, Jose Luis Tejeda, also testified. He stated that he would be willing to help monitor Cardenas and ensure his appearance in court, and noted that he would take Cardenas to his home in the country where “it’s a lot easier to control him.”

The State then asked the court to take judicial notice of Investigator Amy Groethe’s affidavit, which Groethe submitted to obtain Cardenas’s arrest warrant. Groethe detailed the gruesome crime scene and her interview with Michael Tracy.

Groethe then took the stand and provided additional details about the crime scene, confirming the apparent cause of death and the evidence indicating that Mussett had been raped. Groethe testified that there were not only stab wounds and signs of strangulation, but indications of blunt force trauma, which she believed to have been cause by a cast iron skillet. She described the appearance of Mussett’s face and head in detail. Groethe further testified that Mussett had previously reported her vehicle missing and obtained a rental vehicle, both of which were found in a ditch with the keys in Cardenas’s possession. When police contacted Cardenas about the case, he gave a false name and ran.

Groethe then relayed what Cardenas had told his friends and cellmates about the crime, over Cardenas’s running hearsay objection. In particular, Groethe testified that Lagha Boutarfa, an inmate in a cell near Cardenas’s, heard Cardenas say—with  no remorse—that he broke into the home because he wanted to have sex and was frustrated because Mussett died from strangulation before he could “finish the act.” Boutarfa indicated that Cardenas’s motive was to steal Mussett’s narcotics, although another of Cardenas’s friends told Groethe the motive was to steal Mussett’s car.

Finally, Groethe testified that she had listened to Cardenas’s jail calls and heard him joking about not liking his mug shot and bragging about being famous. She opined that Cardenas’s family would not be able to control him or prevent him from taking narcotics, nor would an electronic monitoring device ensure his appearance in court.

The trial court noted its consideration of the Article 17.15 requirements, and set bond at $750,000 for all three offenses, with no conditions. The following day, Cardenas was indicated for capital murder, sexual assault, and burglary with the intent to commit a felony.

Cardenas appealed, arguing (1) the amount of the bond was oppressive, (2) the trial court failed to consider all the relevant bond factors, (3) the trial court could have secured his appearance in court with a lower bond that included condition, and (4) the trial court improperly relied on hearsay evidence.

Held: The trial court’s order setting bond at $750,000 was reasonable and within the court’s discretion. The order was affirmed.

Amount of the Bond

The Thirteenth Court of Appeals reviewed the trial court’s bond determination for an abuse of discretion. Article 17.15 of the Texas Code of Criminal Procedure requires a trial court to consider 5 factors in setting the bond amount: “(1) that the bail be set sufficiently high to insure compliance; (2) that the bail not be used as a tool of oppression; (3) the nature of the offense the accused is suspected of having committed and the circumstances under which it was committed; (4) the ability of the defendant to make bail; and (5) the future safety of the victim and the community.” The Court of Criminal Appeals has also instructed courts to consider the defendant’s family, ties to the community, length of residency, work record, criminal record, compliance with past bonds, outstanding bonds, and any aggravating circumstances in the alleged crime.

Sufficiently high to insure appearance at trial

The court first noted the severity of the offenses with which Cardenas was charged. Because he faced life in prison, he had a strong motive to run rather than appearing for trial. His mother’s husband in India created a clear connection to another country that could allow him to flee. Furthermore, Cardenas had a history of giving false ID and running from the police.

The testimony at the hearing also indicated that his family was not able to control Cardenas or his drug use. The money that would be used to pay Cardenas’s bond would be his family’s rather than his own, giving Cardenas little incentive to appear.

In sum, this factor supports the combined $750,000 bond.

Tool of oppression

Next, the Thirteenth Court considered whether the bond was a tool of oppression. The court noted that, in comparable cases, courts of appeals have upheld bonds over $1 million where the defendant was facing a capital murder charge. Cardenas’s bond amount was significantly lower than in those cases, even though he is charged with multiple crimes. Moreover, it is 1/3 of what the State requested.

Although Cardenas argued that the trial court should have imposed conditions if it were really concerned with his appearance in court, neither Cardenas nor the State requested conditions, and the court was not required to impose them. Regardless, the $750,000 amount was not oppressive.

Nature and circumstances of offense

The Thirteenth Court noted that the nature of the offense and potential punishment imposed in the primary factor in assessing bail. Here, Cardenas beat, stabbed strangled, and sexually assaulted a 61-year-old woman. Cardenas joked and bragged about the murder, showing no remorse and regretting only that the woman died before he could “finish.” He faces a possible life sentence for the crime. This factor thus supports the $750,000 bond.

Ability to make bail

The court noted that the ability to make bail is the only factor supporting Cardenas’s position. However, a defendant’s inability to make bail does not render the amount unreasonable; it must be weighed against the other factors. In light of the gruesome crime and potential life sentence, Cardenas’s inability to make bond is outweighed by the others factors.

Future safety of the community

Again, the court reiterated that the violent nature of the capital murder and aggravated sexual assault show Cardenas posed a risk to the community. The actions appear to be motivated by Cardenas’s drug habit, greed, and frustrations. Cardenas showed no remorse and would likely use narcotics again.  The safety of the community supports the trial court’s $750,000 bond.

Other factors

The court then examined the Court of Criminal Appeals’ additional factors. Cardenas had lived in Victoria with his family all his life and was a U.S. citizen. His family had no criminal history and offered to help supervise him. Apart from the prior arrest for failure to identify, Cardenas had no criminal history. However, he had a drug problem. The factor thus weighs only slightly in favor of Cardenas.

Weighing these factors, the court held that the trial court did not abuse its discretion by setting bond at $750,000, and that the amount was reasonable.

Hearsay evidence

Cardenas next argued that the trial court improperly considered hearsay evidence, and that without the hearsay evidence there was insufficient evidence to show probable cause. The court held that the issue is moot because Cardenas has since been indicted for his crimes, which establishes probable cause as a matter of law.

The trial court’s order setting bond was affirmed.

Read the Full Opinion Here

Opinion Released February 1, 2018

State Office of Risk Management v. Arnold Pena, Guardian of Juan Carlos Pena, No. 13-16-00598-CV (Opinion by Justice Hinojosa; Panel Members: Justices Rodriguez and Longoria)

In this appeal from a final judgment, the Thirteenth Court analyzed the evidence necessary to show that a car accident is within the “course and scope of employment.”

J.C. was injured in a car accident while travelling from his HHSC office to a 1:30 p.m. mandatory training in a neighboring city. Arnold sought workers’ compensation benefits, but the State Office of Risk Management (“SORM”) argued that J.C. was on his lunch hour when the injury occurred at 12:06, and HHSC only provided 30 minutes of compensated travel time from 1:00 to 1:30. Arnold’s request for benefits was denied by a hearings officer and affirmed by an administrative appeals panel. Arnold then sought review from the district court.

SORM moved for a no-evidence summary judgment, claiming there was no evidence of an injury in J.C.’s course and scope of employment, and no evidence a disability resulted from a compensable injury. Arnold attached multiple depositions and claimed J.C.’s injury occurred while he was travelling for a “dual purpose,” one purpose being a work-related event. The trial court granted SORM’s motion. The Thirteenth Court of Appeals reversed, finding that Arnold presented a fact issue precluding summary judgment.

On remand, the case was tried to a jury. The key issue at trial was whether or not J.C. was working at the time of the injury. No witness was sure where J.C. was going to or coming from at the time of the accident. However, there was evidence and testimony offered regarding the HHSC’s mileage reimbursement policy, the fastest route to the neighboring city, and the proximity of the accident to J.C.’s home. The jury returned a verdict that J.C. sustained a compensable injury within the course and scope of his employment. The trial court entered judgment reversing the administrative appeals panel’s decision, holding that J.C. sustained a disability, and awarding attorney’s fees.

SORM appealed, challenging the sufficiency of the evidence.

Held: The evidence was legally and factually sufficient to show that J.C. was injured in the course and scope of his employment. The judgment was affirmed.

Legal Sufficiency

First, SORM challenged the sufficiency of the evidence to support the finding that J.C.’s injury was within the course and scope of his employment.

The Labor Code defines “course and scope” as an activity “that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer.” SORM challenged the sufficiency of the evidence to show that J.C.’s trip “originates in the work” and was in “furtherance of the affairs of business of the employer.”


Regarding origination, there was testimony that the training was mandatory, providing some evidence that J.C.’s travel originated in his employment.


Regarding the “furtherance” prong, the Thirteenth Court of Appeals noted that the Labor Code contains 2 exclusions from the definition of “course and scope of employment”: the coming-and-going and dual-purpose exclusions. The coming-and-going exclusion holds that transportation to and from a place of employment is not within the course and scope, unless it is paid travel or if the employee is on a “special mission,” i.e., he is directed by the employer to proceed from one place to the other. The dual purpose exclusion holds that transportation in the furtherance of both business and personal affairs is not in the course and scope of employment, unless the travel would have been made even if there had been no personal affair involved and would not have been made if it had not been required by the business affair.

The court noted that, in the prior appeal from SORM’s summary judgment, it held that there was legally sufficient evidence that J.C.’s travel was paid and that he was on a special mission. The deposition testimony relied upon in that appeal matches the witness’s testimony at trial. Moreover, SORM’s challenges to the paid travel and special mission exceptions to the coming-and-going exclusion were not preserved and have been waived.

Equal Inference Rule

SORM next argued that, although the jurors could infer J.C. was driving to Edinburg at the time of the accident, they could equally infer that he was on a distinct personal errand. SORM claimed Arnold was required to negate this possibility to avoid the equal inference rule. However, the jury was presented with no evidence regarding a distinct errand, and any inference would have been speculation.


SORM further argued that HHSC employees were not compensated for the lunch hour, and J.C. was thus “off the clock” as a matter of law. The Thirteenth Court of Appeals rejected this argument, noting that compensation is not the definition of the “course and scope of employment.” Regardless, there was testimony that HHSC allowed the employees to go ahead and travel to the neighboring city during their lunch hour, and the employees were entitled to mileage reimbursement for the travel.

Davis v. Texas Mutual Insurance Company

Finally, SORM argued that the holding in Davis v. Texas Mutual Insurance Company, 443 S.W.3d 260 (Tex. App.—Dallas 2014, pet. denied), should be applied to the case. That case however, involved the “continuous coverage” rule, which was not at issue in this case.

Thus, the Thirteenth Court held that there was legally sufficient evidence to support the judgment.

Factual Sufficiency

SORM next challenged the factual sufficiency of the evidence to show that J.C.’s employer directed, required, or expected its employees to travel at 12:06. The Thirteenth Court noted that this was a general attack on the evidence, rather than a challenge to a specific element. The Thirteenth Court rejected this general attack, which relied on the faulty premise that Arnold bore the burden to show J.C. was being compensated at the precise minute of the accident. Rather, Arnold offered legally and factually sufficient evidence showing that J.C. was travelling in the direction of the neighboring city when the accident occurred.

The trial court’s judgment was thus affirmed.

Read the Full Opinion Here

Opinion Released January 31, 2018

Tanya Ramirez v. State of Texas, No. 13-16-00069-CR (Opinion by Justice Rodriguez; Panel Members: Chief Justice Valdez and Justice Hinojosa)

In this appeal from a judgment convicting a high school employee of having sex with two students, the Thirteenth Court of Appeals analyzed whether engaging in consensual sex is a fundamental right.

Tanya Ramirez was indicted for violating Penal Code Section 21.12(a)(1) by having sexual intercourse with a student, T.P., at the high school where Ramirez worked. Ramirez filed a motion to dismiss and/or motion for declaratory judgment, arguing that the statute was facially unconstitutional because it violated her right to privacy, was content-based, and did not satisfy the strict scrutiny standard. The trial court denied Ramirez’s motion. The indictment was later amended to add a second charge against Ramirez for having sex with a different student, B.J. Ramirez did not move to dismiss the charges related to B.J.

Ramirez pleaded guilty to Count 1 and no contest to Count 2. She was sentenced to five years’ confinement on each count, to run concurrently. The trial court suspended her sentences and placed her on community supervision for 7 years with a fine of $4,000 and restitution of $400.

Ramirez appealed the constitutional issue, arguing that section 21.12 infringes on her right to privacy.

Held: Engaging in consensual sex is not a fundamental right, and thus Section 21.12 of the Texas Penal Code is not subject to strict scrutiny analysis. The judgment of conviction was affirmed.

On appeal, Ramirez argued that the right to engage in consensual sex is a personal privacy right that relates to the rights of marriage, procreation, contraception, family relationships, and the like. Ramirez argued that Section 21.12 implicates her fundamental right to engage in consensual sex, and thus the strict scrutiny standard of review applies. Since the statute cannot pass the strict scrutiny test, it must be struck down.

The Thirteenth Court held however, that the right to consensual sex is not a fundamental privacy right. The court acknowledged that Obergefell v. Hodges, 135 S. Ct. 2584 (2015), referenced consensual sex as an “intimate association” that served as one of 4 bases for showing that the right to marry was fundamental under the Contrary. The Obergefell opinion did not—contrary to Ramirez’s argument—hold that intimacy itself was a fundamental right. Similarly, in Lawrence v. State, 539 U.S. 558 (2003), the Supreme Court held that consenting adults had a right to have sex free from government intrusion, but did not hold that the right was fundamental. Rather, the Lawrence opinion applied the rational basis test. Furthermore, the Texas courts of appeals that have addressed the issue have held that Section 21.12 does not implicate a fundamental right. The Thirteenth Court thus agreed with its sister courts and held that engaging in consensual sex is not a fundamental right.

Since Ramirez challenged the statute under the inapplicable strict scrutiny standard, the Thirteenth Court did not address those arguments. The court overruled Ramirez’s sole issue and affirmed the judgment.

Read the Full Opinion Here

Opinions Released January 11, 2018

The State of Texas v. Jose Ruiz, No. 13-13-00507-CR (Opinion by Justice Benavides; Panel Members: Justices Valdez and Hinojosa)

In this interlocutory appeal from an order suppressing blood evidence, which was remanded by the Court of Criminal Appeals for reconsideration, the Thirteenth Court of Appeals reviewed the evidentiary requirements for warrantless blood draws in light of the Court of Criminal Appeals’ recent case law on the issue.   

Jose Ruiz got into a car accident in Gonzales, Texas around midnight. When Officer Bethany McBride responded to the scene, the other driver in the accident as well as several bystanders informed McBride that the driver of the Lincoln—Ruiz—had fled behind a nearby car wash. McBride found several exploded beer cans in the Lincoln. The vehicle was registered to Ruiz, and it contained insurance paperwork in Ruiz’s name. A backup officer then arrived and helped locate Ruiz behind the car wash. Ruiz was unresponsive but had no apparent injuries to his body, and he smelt strongly of alcohol. Ruiz was taken to the hospital and remained unconscious overnight.

Officer McBride later went to the hospital to place Ruiz under arrest and ensure that Ruiz’s blood was drawn. She did not obtain a warrant prior to the blood draw, even though she testified that she had no concern he would flee the hospital or destroy evidence. She later testified that the Gonzales Police Department did not have procedures in place to obtain a search warrant, and that it would have been difficult and inconvenient to find a judge able to sign one that night. She instead relied upon Texas Transportation Code Chapter 724 and 724 for the blood draw, based on Ruiz’s 4 prior DWI convictions.

The trial court granted Ruiz’s motion to suppress the blood evidence, finding that no exigent circumstances existed, and that suppression was required under McNeely. The State appealed. The court of appeals originally decided the case in 2015, but the Court of Criminal Appeals vacated and remanded the decision for reconsideration in light of the its intervening opinions on the suppression of blood evidence. The Thirteenth Court thus addressed whether the trial court erred in granting Ruiz’s motion to suppress.

Held: The trial court properly held that exigent circumstances did not exist to justify Ruiz’s warrantless blood draw. The trial court’s order suppressing the blood evidence was affirmed.

Because the State acknowledged the warrantless nature of the blood draw, the State had the initial burden to establish that the search was reasonable. To meet this burden, the State relied on Texas’s implied consent law in Texas Transportation Code Chapter 724, while arguing in the alternative that exigent circumstances existed.

Transportation Code Chapter 724

The Thirteenth Court noted that the consent implied by Chapter 724 of the Transportation Code can be revoked if a defendant refuses to submit to a blood draw. If the defendant is unconscious however, the implied consent is considered not to have been withdrawn. Nonetheless, the Thirteenth Court of Appeals held that the implied consent law does not create a per se exception to the warrant requirement.

Consent to a blood draw must be freely and voluntarily given—a fact issue the State must prove by clear and convincing evidence. Here, Ruiz was unconscious and could not give his consent freely or voluntarily, nor did he have an opportunity to revoke his consent. Thus, the State could not rely on the implied consent law to justify Ruiz’s blood draw.

Exigent Circumstances

Regarding the State’s alternative argument that exigent circumstances existed to justify the warrantless blood draw, the Thirteenth Court conducted a two-prong test: (1) was there probable cause to search, and if so, (2) did exigent circumstances exist to justify the warrantless search?

The court agreed that the State had probable cause to search, in light of the automobile accident, beer cans, and Ruiz’s alcoholic odor and unconscious state. The court then turned to the exigent circumstances analysis, relying heavily on the Court of Criminal Appeals’ opinions in Cole v. State, 490 S.W.3d 918 (Tex. Crim. App. 2016), and Weems v. State, 493 S.W.3d 574, 582 (Tex. Crim. App. 2016).

In Cole, the Court of Criminal Appeals held that exigent circumstances existed to justify a warrantless blood draw where the defendant was high on meth, but there were no available officers to leave the scene or hospital to obtain a warrant, and intervening medical treatment would have tainted the blood sample while the warrant was being obtained. Moreover, unlike alcohol, meth does not have a known elimination rate that could be traced backward if the test were delayed.

In Weems, the Court of Criminal Appeals held that exigent circumstances did not exist to justify a warrantless blood draw after Weems struck a pole with his car, admitted he was drunk, refused a blood draw, then waited at the busy hospital to have his blood forcibly taken more than 2 hours after his arrest. The Court of Criminal Appeals emphasized that the wait for a blood draw was foreseeable, the hospital was close to the scene of the accident, there were law enforcement personnel available to wait with the defendant while the warrant was obtained, and there was a magistrate on duty to review warrant applications.

Applying these cases, the court held that exigent circumstances did not exist to justify Ruiz’s warrantless blood draw. The court noted that Ruiz was held at the hospital overnight with no concern that he would flee. While there were no procedures in place to obtain a warrant, obtaining a warrant would take several hours, and McBride testified that there were no available officers, the Thirteenth Court of Appeals held that this testimony was insufficient to show exigent circumstances without elaboration as to why a delay would affect or taint the blood sample, or what important functions the other available officers were performing that prevented them from helping obtain a warrant. Moreover, McBride erroneously relied on the implied consent law, believing she did not need to obtain a warrant.

Thus, the State did not meet its burden to show exigent circumstances sufficient to satisfy the Fourth Amendment. The trial court’s order suppressing the blood evidence was affirmed.

Read the Full Opinion Here



First Cash, Ltd. v. JQ-Parkdale, LLC, H&JQ PD, LLC, W-SB Staples/SPID, LLC, R-SB Staples/SPID, LLC, Parkdale Income Partners, LP, and Capital Area Retail Development II, Inc., No. 13-16-00099-CV (Opinion by Justice Rodriguez; Panel Members: Justices Contreras and Longoria)

In this direct appeal, the Thirteenth Court of Appeals reviewed the legislative history and construction of Section 38.001 of the Texas Civil Practice and Remedies Code to determine if the statute provides for the recovery of attorney’s fees from an LLC.

In September 2001, First Cash leased space in the Parkdale Shopping Center from the “Legacy Landlords”—a group of 4 entities. The lease had a 10-year term, with the option to renew for two additional 5-year terms. The lease also allowed the landlord to terminate in the event of casualty or a significant loss in the premise value.

In 2007, Legacy Landlords entered into discussions with Walmart about the possibility of redeveloping the property, including demolishing the Parkdale shopping center and building a Walmart. Then, in June 2009, a fire destroyed parts of the Parkdale Shopping Center, but the fire did not damage the building First Cash leased. The Landlords notified First Cash that it was terminating the lease as a result of the fire.

First Cash moved to a new location but demanded compensation for the breach and reimbursement for the cost of improvements at the new location. The Landlords meanwhile, demolished the Parkdale Shopping Center and sold most of the lot to Walmart, while developing new retail space on the remaining portion of the property. The Landlords also transferred their interests in Parkdale to the “Current Landlords”—two entities owned by the same company as the Legacy Landlords.

First Cash sued for breach of contract, and the case was tried to a jury. The court granted a directed verdict for the Current Landlords, but the jury found that the Legacy Landlords breached the lease. The jury awarded First Cash $182,400 in “rent differential” damages, and $130,000 in  “build-out” damages for rebuilding in a new location. The jury also awarded $800,000 in attorney’s fees, with $65,000 in fees for appeal. The trial court granted the Legacy Landlord’s JNOV and set aside the fee award because the Legacy Landlord entities were LLCs and not “individual[s] or corporation[s]” as required by the attorney’s fee statute.

Both parties appealed the adverse portions of the judgment.

Held: There was insufficient evidence of the amount of rent charged at the Parkdale Shopping Center after the breach, and thus insufficient evidence of the specific damages awarded. The $182,400 award was reversed and remanded for a new trial on damages only. However, the award for build-out costs was affirmed. Moreover, the trial court properly entered a JNOV on First Cash’s attorney’s fees because Section 38.001 does not allow the recovery of fees from an LLC.

Attorney’s Fees

First Cash argued that the attorney’s fee statute in Section 38.001 of the Texas Civil Practice and Remedies Code allows for the recovery of fees from an LLC. First Cash claimed that the phrase “individual or corporation” in the statute is intended to be interpreted as a whole, rather than separately as “individual” and “corporation.” First Cash argued that the phrase “individual or corporation” has a unique meaning based on the legislative history and comparable usage, and is intended to mean virtually any legal entity.

The Thirteenth Court noted that every Texas and federal court to address the issue has held that Section 38.001 does not allow the recovery of fees from LLCs because an LLC is not an “individual” or a “corporation.” However, the specific argument presented by First Cash was an issue of first impression.

The court reviewed the legislative history and construction of the term “individual or corporation.” The court noted that Section 38.001 was a recodification of Article 2226 of the Texas revised Civil Statutes, which provided that “any person, corporation, partnership, or other legal entity  having a valid claim against a person or corporation.” “Person” is defined in the Code Construction Act to include any “corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, or any other legal entity.” Nonetheless, all but one court of appeals—the Beaumont Court of Appeals—interpreted Article 226 to not permit the recovery of fees from governmental entities. “Person” was then changed to “individual” during the “non-substantive” recodification, and a reviser’s note clarified that the term “person” was not used to avoid the broad definition of that term in the Code Construction Act. First Cash thus argued that “individual or corporation” should be interpreted to have the same meaning as “person or corporation,” excluding only the governmental entities the Legislature intended to remove from the statute with its modification of the language. First Cash argued that its interpretation was supported by comparable uses of the phrase, such  as in the repealed Texas Revised Partnership Act where the phrase was used to refer to legal entities with the power to sue or be sued.

However, the Thirteenth Court noted that, since the recodification of Section 38.001, the courts— including the Beaumont Court of Appeals—have interpreted “individual” according to the “plain language” and consistent with the definition in the Business Organizations Code: meaning a “natural person.” Only one federal district court has held that Section 38.001 allows the recovery of fees against an LP, LLC, or LLP. Furthermore, other uses of the phrase enacted at the same time as the recodification have since been repealed and replaced with the broader term, “person,” indicating the intentionality of the Legislature’s decision to limit the recovery of attorney’s fees from certain entities.

The Thirteenth Court of Appeals thus concluded that (1) the broad definition of “person” in the Code Construction Act did not govern the application of the predecessor statute; (2) defining “person” to encompass “partnership[s]” and “other legal entit[ies],” which were separately listed as potential claimants in the predecessor statute, would render these terms surplusage; (3) the reviser’s note clarifies that the broad definition of “person” was not intended; and (4) Section 38.001 has the same substantive meaning as the predecessor statute. Attorney’s fees are thus only available against a natural person or corporation. The trial court thus properly granted a JNOV and set aside the jury’s award of attorney’s fees.


First Cash next argued that the trial court erred by granting a directed verdict in favor of the Current Landlords because they are successors to all the liabilities of the Legacy Landlords. However, First Cash had no evidence of a formal conversion under Section 10.101 of the Business Organizations Code, and relied on one line of testimony where a co-owner stated was asked whether he “converted your ownership to a limited partnership.” The issue was thus overruled.


Finally, the Legacy Landlords cross-appealed on the damages awarded, arguing that  there was insufficient evidence to support the $182,400 in “rent differential” damages, and that the $130,000 was …

Rent Differential Damages

The court of appeals recognized that a normal measure of breach of contract damages is the benefit of the bargain, which can be measured by the difference between the agreed rent and the actual market rental value of the remaining lease term. The plaintiff may also recover consequential damages that result naturally from the breach.

In the court’s charge, the jury was asked to find the difference between First Cash’s rent under the lease, and the actual market value of the remaining lease term. First Cash argued that the difference was $7.60 per square foot per year, but the jury returned a broad-form answer equivalent to $3.06 sq. ft./yr.

There was no dispute regarding the value of First Cash’s rent under the lease: $10.16 sq. ft./yr. However, the Legacy Landlords argued that there was no evidence the market value of the lease was at least $13.22 sq. ft./yr or more, as required to support the jury’s verdict. The jury heard significant testimony about the rental rates the Landlord offered to First Cash and other businesses for space in the new Parkdale Shopping Center, ranging from $14 to $18 sq. ft./yr. However, unaccepted offer prices are not competent evidence of market value. Although there was sufficient evidence to show that the new rental rate was higher, there was insufficient evidence of a specific rate to support a specific amount of damages. The court thus remanded the case for a new trial on First Cash’s rent differential damages.

Build-Out Damages

The Legacy Landlords next argued that First Cash failed to show its build-out damages were “reasonable and necessary” costs required to construct the pawn shop in the new location. However, the Thirteenth Court of Appeals held that the “reasonable and necessary” requirement was established in the construction context in McGinty v. Hennen, 372 S.W.3d 625 (Tex. 2012) (per curiam), and was inapplicable in suits for breach of lease. The issue was overruled.

Read the Full Opinion Here


Luis Armando Carreon v. State of Texas, No. 13-16-00347-CR (Opinion by Justice Hinojosa; Panel Members: Chief Justice Valdez and Justice Contreras)

In this appeal from an order revoking probation, the Thirteenth Court of Appeals examined the evidentiary requirements for revocation based on a probationer’s failure to pay.

Luis Carreon pleaded guilty to two counts of burglary of a habitation in April 2006. On the count underlying his appeal, the trial court sentenced Carreon to ten years’ confinement, suspended the sentence, placed him on probation, and ordered him to pay $23,107.36 in restitution, $347 in court costs, and a $750 fine.

In February 2016, the State moved to revoke Carreon’s probation based on 4 violations, all related to Carreon’s failure to fully pay the restitution, court costs, and the fine. Carreon’s counsel argued he was unable to pay the restitution, and the State requested two years’ confinement as punishment. The trial court rejected the plea bargain, calling it “ridiculous” because it was not even the minimum punishment. The court then set the case for an evidentiary hearing the following day. The State moved to dismiss the motion to revoke, stating it did not have sufficient evidence. The trial court denied the State’s motion to dismiss, stating “I’m not dismissing it. I’m going to make you go to trial.”

The State, following the court’s direction, called Carreon’s current and previous probation officers. Garcia, Carreon’s’ current probation officer, testified that he attended all the required meetings, was not arrested, and tested negative for drugs. The accounting department determined how Carreon’s monthly payments were allocated between his two burglary offenses, and Garcia was not sure why the accounting department allocated the payments as it did. Garcia also admitted that she neglected to help Carreon create a monthly budget to afford the required payments.

Carreon then called himself and his wife to testify. Carreon testified he was placed on community supervision when he was 18 and had no work experience and a wife and infant son to feed. He worked several jobs, but had trouble finding steady employment as a convicted felon without a car. He earned his GED and a computer accounting degree, but the degree left him with student debt. Carreon mowed his neighbors’ yards and worked for family members, but earned only about $100 each week. Carreon’s wife Erica then testified, confirming that the couple did not own a car and that they and their three children live with Erica’s parents and sisters in a 3-bedroom trailer.

The trial court then granted the State’s motion to revoke, commenting that Carreon willfully refused to pay restitution for multiple years, and willfully made himself underemployed.

Carreon appealed, arguing that (1) the evidence is legally insufficient to support revocation for failure to pay restitution; and (2) it is unconstitutional to put him in jail for poverty.

Held: There was legally insufficient evidence to revoke Carreon’s probation for failure to pay restitution. Moreover, the revocation violated Carreon’s right to fundamental fairness under the Fourteenth Amendment because there was legally insufficient evidence of willfulness and the trial court failed to consider alternative punishments. The judgment was reversed and rendered.

Legal Sufficiency

Article 42.037 of the Texas Code of Criminal Procedure provides that the court “may” revoke community supervision for failure to pay restitution, but states that the trial court “shall” consider six factors in its determination: (1) the defendant’s employment status, (2) the defendant’s earning ability, (3) the defendant’s financial resources, (4) the defendant’s willfulness in any failure to pay, (5) special circumstances affecting the ability to pay, and (6) the victim’s financial resources. Citing the Court of Criminal Appeals’ opinion in Bryant v. State, 391 S.W.3d 86 (Tex. Crim. App. 2012), the Thirteenth Court held that the statute implicitly requires the trial court to hear some evidence on each of the six factors. The court then listed out the evidence on each factor, noting that there was no non-speculative evidence of Carreon’s future financial resources, or his willfulness, and there was no evidence whatsoever regarding the victim’s financial resources. Furthermore, the trial court placed significant weight on Carreon’s alleged willfulness, which was based on assumptions and speculation demonstrated by the trial court’s direct examination of the witness.

The Thirteenth Court thus held that there was insufficient evidence of willfulness or of the victim’s financial resources, and thus insufficient evidence to support the revocation of Carreon’s probation for failure to pay restitution.

Ability to Pay

The Thirteenth Court next turned to the remaining revocation grounds related to Carreon’s failure to pay fees, fines, and court costs.

The Supreme Court held in Bearden v. Georgia, 461 U.S. 660 (1983) that a court must “inquire  into the reasons for the failure to pay” before revoking a defendant’s probation on that basis. Revocation is only permitted if the probationer failed to make bona fide efforts to pay, or if there is no alternate measure of punishment that would satisfy the State’s interests in punishment and deterrence. Doing otherwise would violate the Fourteenth Amendment guarantee of fundamental fairness.

The Thirteenth Court reiterated that the trial court’s finding regarding Carreon’s alleged willfulness was legally insufficient. Moreover, although the trial court noted that it could not extend Carreon’s probation because the term had lapsed, it did not consider other alternate measures to meet the State’s interests. There was no evidence that the trial court’s emphasis on making the victim whole was the State’s primary interest, and the victim was not even at the hearing. The Thirteenth Court thus held that revoking Carreon’s probation was erroneous and violated the Fourteenth Amendment. 

Because Carreon’s term of community supervision had already expired, the court reversed and rendered a judgment discharging Carreon from community supervision.

Read the Full Opinion Here

Opinion Released January 4, 2018

Karl Dean Stahmann v. State, No. 13-16-00400-CR (Opinion by Justice Contreras; Panel Members: Justices Rodriguez and Benavides)

In this appeal from a conviction for tampering with evidence, the court of appeals examined the elements of the crime and discussed the evidence necessary to prove tampering.

This case stems from a conviction for tampering with physical evidence at the scene of a car accident.

Norberto Gonzalez and Karl Dean Stahmann collided while driving in opposite directions on a highway outside New Braunfels. Stahmann was turning left into a nearby subdivision, and Gonzalez claimed Stahmann did not have his turn signal activated.

Ronnie Ballard was a bystander when the crash occurred, and he called 911. Ballard testified that he saw Stahmann exit the van, complaining that he could not see out of one eye. Ballard saw Stahmann walk toward a gated fence near the accident and throw something that looked like a prescription medicine bottle into the shrubbery. Ballard approached the area to get a better look, and Stahmann became angry and asked what Ballard was doing. Stahmann then told Ballard that he wanted someone to call his father, and that his father lived in the subdivision into which he had been turning. Ballard saw beer cans inside the van but noted that Stahmann did not appear disoriented apart from the effects of the accident.

However, bystander Michael Freeman testified that Stahmann was confused and disoriented and bleeding from the head. Freeman, too, saw Stahmann throw what looked like a medicine bottle over the fence near the accident, and corroborated Ballard’s testimony that Stahmann became nervous when he and Ballard approached the area. Freeman attempted to contact Stahmann’s father, but there was no response.

Retired paramedic Terry Aikman saw the accident scene and stopped to help. He testified Stahmann had a wound over his left eye and was bleeding, but did not appear intoxicated and was able to answer basic questions demonstrating that he was alert and aware of his surroundings.

Ballard and Freeman told the police about the pill bottle they saw Stahmann throw over the fence, and an officer retrieved the bottle. The bottle reflected a prescription for James Castaneda for “promethazine tab 25 mg.” Promethazine is a cough suppressant that is classified as a dangerous drug and requires a prescription.

The case was tried to a jury, and the jury was charged on both tampering with the evidence and attempted tampering. The jury convicted Stahmann of tampering with physical evidence. Stahmann appealed, raising seventeen issues including the sufficiency of the evidence, the denial of his motion to quash, the failure to give certain requested jury instructions, collateral estoppel, and improper jury arguments.

Held: There was insufficient evidence that Stahmann altered or concealed the pill bottle. The judgment was reversed and modified to reflect a conviction for the lesser-included offense of attempted tampering with the evidence.

Sufficiency of the Evidence

Stahmann first challenged the sufficiency of the evidence to support his conviction. The court of appeals analyzed the issue based on a hypothetically correct jury charge. The crime’s elements are: (1) knowing that an offense was committed or that an investigation or official proceeding was pending or in progress; (2) the defendant altered, destroyed, or concealed a bottle of pills; (3) with intent to impair its verity, legibility, or availability as evidence in any subsequent investigation of or official proceeding related to the offense.

Alteration, Destruction, or Concealment

First, the court held that there was insufficient evidence to support the jury’s finding that Stahmann had destroyed or altered the pills. The State did not contend that Stahmann destroyed the pills but argued that he altered the bottle by throwing it over the fence when it had been raining, smudging the label. The State relied on Blanton v. State, No. 05-05-01060-CR, 2006 WL 2036615 (Tex. App.—Dallas July 21, 2006, pet. ref’d) (not designated for publication), where the Dallas Court of Appeals held that the defendant altered two plastic bags of drugs by throwing them out the window, resulting in rips in the Ziploc bags.  The Thirteenth Court distinguished Blanton because the rips in the Ziploc bags affected the functionality of the bags, allowing the jury to assume that the bag was not ripped before it was thrown out the window. Stahmann’s pill bottle however, was functional regardless of the smudged label, and there was no evidence of what the bottle looked like before Stahmann threw it over the fence. Thus, the evidence was legally insufficient to support the State’s “alteration” theory.

Next, the court examined the evidence supporting a finding that Stahmann concealed the bottle of pills. The Thirteenth Court referenced Thornton v. State, 401 S.W.3d 395, 398 (Tex. App.—Amarillo 2013), rev’d on other grounds, 425 S.W.3d 289 (Tex. Crim. App. 2014) ,and Villarreal v. State, No. 13-15-00014-CR, 2016 WL 8919852, at *5 (Tex. App.—Corpus Christi Dec. 8, 2016, no pet.) (mem. op., not designated for publication). In both cases, the defendant dropped or tossed drug-related items, but the courts held that there was insufficient evidence of concealment because the items were not hidden from view. The Thirteenth Court of Appeals applied the same rule to Stahmann’s case, holding that there was insufficient evidence of concealment because the pill bottle was not hidden from view but could be seen by both bystanders and law enforcement officers.

The court further rejected the State’s attempts to rely on Munsch v. State, No. 02-12-00028-CR, 2014 WL 4105281, at *8 (Tex. App.—Fort Worth Aug. 21, 2014, no pet.) (mem. op., not designated for publication), and Lujan v. State, No. 07-09-0036-CR, 2009 WL 2878092, at *2 (Tex. App.—Amarillo Sept. 9, 2009, no pet.) (mem. op., not designated for publication). In Munsch, the Fort Worth Court held that the defendant concealed a bag of meth when he threw it out of the passenger-side window of a car, which the police would not have recovered if the driver of the vehicle had not told the police what happened. In Stahmann’s case, however, there was evidence that the police would have noticed and found the pill bottle even without the witness’s tip. In Lujan, the Amarillo Court of Appeals held that the defendant concealed a crack pipe when he made a throwing motion, and police then found the pipe on the ground. The Thirteenth Court flatly disagreed with the Amarillo Court’s conclusion, stating that the court in Lujan conflated the actus reus and the mens rea of the offense. The court clarified that concealment and intent are distinct elements, and concealment must be actual rather than simply attempted. Finally, the Court acknowledged that Stahmann’s alleged  tampering with evidence had been held to be a violation of his unrelated community supervision, and the finding had been affirmed by the Austin Court of Appeals.  Nonetheless, the court stated that, on the record before it, there was insufficient evidence of concealment.

Knowledge and Intent

Stahmann next challenged the sufficiency of the evidence to support his knowledge and intent. The Thirteenth Court noted that the State was required to show that Stahmann knew “that an investigation or official proceeding was pending or in progress” or “that an offense has been committed.” Stahmann challenged the evidence showing that he knew “an investigation or official proceeding was pending or in progress,” but not the evidence he knew “an offense has been committed.”

The Thirteenth Court noted that “pending” in the statute means “impending or about to take place.” There was thus sufficient evidence that, after a car accident causing injury, Stahmann knew that a police investigation was about to take place when he threw the pill bottle.

The State was also required to prove that Stahmann acted with the intent to “impair [the] verity or availability [of the pill bottle] as evidence in the investigation or official proceeding,” and, if applicable, that the investigation or proceeding was related to the offense. The Thirteenth Court held that there was sufficient evidence to infer intent from the circumstantial evidence because Stahmann had open beer cans in his car, wanted to leave the scene, and became angry and nervous after throwing the pill bottle.


Finally, the court of appeals addressed whether it could reform the judgment to the lesser-included offense of attempted tampering with the evidence, which was submitted to the jury but not reached as a result of the conviction on the greater offense. Reformation is appropriate where (1) in the course of convicting the defendant of the greater offense, the jury necessarily found every element required to convict the appellant for the lesser-included offense; and (2) there is sufficient evidence to support a conviction for the lesser- included offense.

Stahmann argued that the jury did not necessarily find every element of a lesser-included offense because the State submitted two different manners of committing tampering to the jury: tampering with knowledge of a pending investigation or proceeding, and tampering with knowledge that an offense has been committed. The court of appeals rejected this contention, holding that because the jury found all elements of one manner of committing tampering, it necessarily found all elements of one manner of attempted tampering. Thus, the court reformed the judgment to convict Stahmann of attempted tampering, a state jail felony.

Motion to Quash

Stahmann next challenged the trial court’s denial of his motion to quash Count 4 of his indictment, which alleged: “knowing that an offense had been committed, [Stahmann] did then and there alter, destroy or conceal a thing, to-wit: a bottle of pills, with intent to impair its verity, legibility, or availability as evidence in any subsequent investigation of official proceeding related to said offense.” Count 4 tracked the statutory language, but it did not identify the specific “offense” at issue. Stahamnn analogized the tampering charge to the offense of burglary, which requires the State to give notice in the indictment of the specific felony committed or attempted. The Thirteenth Court disagreed, holding that the tampering statute differs from the burglary statute in that the relevant “offense” does not necessarily concern an act by the defendant. Consequently, the indictment need not specify the “offense” of which the defendant was aware when he tampered with evidence.

Regardless, the court recognized that any error did not prejudice Stahmann’s substantial rights because the indictment included other offenses stemming from the same accident, contextualizing the charge for tampering with the evidence.

Jury Charge

Stahmann also challenged the trial court’s failure to include his requested jury instructions regarding (1) specifying the alleged “offense” of which he had knowledge; and (2) requiring unanimity regarding the “offense” to convict. The Thirteenth Court of Appeals noted that the jury must be unanimous as to the specific crime committed, but need not agree regarding the manner of means of the offense. The Texas Court of Criminal Appeals has recognized 3 situations where jury unanimity is required: (1) “when the State presents evidence demonstrating the repetition of the same criminal conduct, but the actual results of the conduct differed”; (2) “when the State charges one offense and presents evidence that the defendant committed the charged offense on multiple but separate occasions”; and (3) “when the State charges one offense and presents evidence of an offense, committed at a different time, that violated a different provision of the same criminal statute.” None of these situations applied to Stahmann’s case. Rather, the specific “offense” of which Stahmann had knowledge was a preliminary fact issue. Thus, jury unanimity was not required.

Collateral Estoppel

Stahmann also argued that the trial court was required, under the doctrine of collateral estoppel, to issue limiting instructions regarding his alleged sobriety because he had been found not to be intoxicated in a separate proceeding.

Stahmann pleaded guilty to credit card abuse in 2011, and was placed on 5 years’ deferred adjudication. The State moved to adjudicate in 2014, alleging numerous violations of Stahmann’s community supervision including intoxication assault against Gonzalez on July 1, 2012. The trial court found the allegation not true, commenting that there was “no evidence” of intoxication despite the open beer cans in Stahmann’s vehicle.

The Thirteenth Court of Appeals examined (1) the facts issues necessarily decided in the first proceeding; and (2) whether those issues were necessarily decided in the second proceeding as well. The court further noted that the Texas Court of Criminal Appeals has held the State is collaterally estopped from relitigating fact issues held to be “not true” in a motion to revoke probation.

The Thirteenth Court held that the doctrine of collateral estoppel did not apply to Stahmann’s case. The trial court in Stahmann’s revocation and adjudication proceeding found that Stahmann had not committed intoxication assault against Gonzalez on July 1, 2012, but it did not specify which element it found to be lacking. The “not true” finding itself did not necessarily indicate that the court found Stahmann was not intoxicated. Moreover, intoxication was only relevant to Stahmann’s knowledge that an offense was committed; it was not an element of tampering with the evidence.The knowledge element was not necessarily contingent on Stahmann’s intoxication, and the jury could have satisfied the element relying on other evidence. In fact, knowledge of an “offense” was not necessary at all for the jury to find Stahmann guilty under the alternate means alleged: that Stahmann knew of a pending investigation of official proceeding. The issue was overruled.

Improper Argument

Finally, Stahmann argued that the trial court erred by overruling his objections to the prosecutor’s statements during closing argument. The Thirteenth Court of Appeals rejected each of Stahmann’s challenges in turn.

First, the court of appeals held that Appellant did not preserve his objection to the prosecutor’s statements during closing argument analogizing to famous court cases and indicating to the jury that Stahmann’s offense was more than a simple case of tampering. In both instances, the prosecutor was referring back to prior statements made during voir dire, to which Appellant did not object.

The court of appeals also rejected Stahmann’s claim that the State improperly struck over the shoulders of counsel by insinuating that the defense counsel had been deceptive in his advocacy. In reality, the prosecutor’s statements attacked Stahmann’s theory and arguments, rather than defense counsel and were therefore proper.

Next, Stahmann also challenged the State’s statement during closing argument that certain aspects of Stahmann’s theory of the case were going down a rabbit trail. The court sustained the objection and instructed the jury to disregard, but Stahmann insisted a mistrial was required. The Thirteenth Court of Appeal disagreed, holding that, even if the “rabbit trail” reference had been improper, it was not so prejudicial as to render the remainder of the proceeding futile.

Having addressed all of Stahmann’s issues, the court of appeals reversed the judgment, remanded the case with instructions to enter judgment for attempted tampering with the evidence, and directed the trial court to conduct a punishment hearing and other proceedings consistent with the court’s opinion.

Read the Full Opinion Here

Opinion Released December 28, 2017

Stanley D. Bujnoch v. Copano Energy, LLC, No. 13-15-00621-CV (Memorandum Opinion by Chief Justice Valdez; Panel Members: Justices Contreras and Benavides)

In this appeal from an order granting the defendants’ motions for summary judgment, the Thirteenth Court of Appeals analyzed whether a series of emails could satisfy the statute of frauds and constitute a binding contract.

The plot of land at issue in this case was owned by Stanley Bujnoch, his family, and several related entities (collectively, the “Bujnochs”). In 2011, the Bujnochs granted an easement to Copano and its related entities (collectively, “Copano”) for a pipeline on the property.

In 2012, the parties began negotiating a second easement for a second pipeline on the property. The parties negotiated through their representatives: Marcus Schwarz for the Bujnochs, and James Sanford for Copano.

Sanford sent two emails in December 2012, stating that Copano “will be buying an additional 20 feet easement contiguous to the first easement for a 2nd 24-inch gas line,” and later clarifying that Copano “will be laying the line generally on the north side of the existing 24-inch line.” Sanford typed his name at the bottom of both emails. Two weeks later, Copano proposed  a plat with the second easement running adjacent to the existing easement.

In January 2013, Copano publicly announced that it would be merging with Kinder Morgan Energy Partners. The next day, Sanford emailed Schwartz and agreed to pay $70 per foot for the second 24-inch line, typing his name at the bottom of the message. Schwartz’s accepted Copano’s offer the same day, and requested notice before Copano began conducting surveys.

In February 2013, Sanford emailed Schwartz and agreed to pay Transportation Equipment, Inc. $88 per foot for the second easement, typing his name below the message and including a signature block. Schwartz’s secretary responded, seeking approval for a formal amendment to the original easement to align with the parties’ emails. The proposed amendment was attached to the email, and Sanford responded, “I am fine with these changes.”

Meanwhile, another Copano representative—Thomas Goolsby—mailed the Bujnochs letters on Copano stationary offering to pay $25 per foot for the second easement. The letter asked the Bujnochs to sign and return the enclosed document if they accepted the offer, with no reference to Sanford’s and Schwartz’s negotiations. The Bujnochs never signed or returned the letters.

In March 2013, as Copano was finalizing its merger with Kinder Morgan, another Copano representative—Brent Eubank—emailed Schwartz. Eubank stated he was sending a proposal letter regarding the second easement, offering $20 to $40 per foot. Schwartz forwarded the email to Sanford, asking in all caps “THIS IS NOT OUR DEAL WHAT IS GOING ON?” Sanford assured Schwartz, “Our deal still stands,” explaining that the “letter went out to all of the attorneys that represent landowners on the pipeline.” He apologized for the confusion and stated he was not sure why Eubank sent Schwartz the letter because Copano knew there was a separate deal with Schwartz’s clients.

Neither Copano nor Kinder Morgan honored the agreement, and the Bujnochs filed suit to enforce the contract created by the emails. The Bujnochs further sued Kinder Morgan for tortious interference with the agreement. Copano and Kinder Morgan both moved for summary judgment. Copano claimed that the emails did not satisfy the statute of frauds as a matter of law, while Kinder Morgan argued that the Bujnochs could not prove the existence of a contract or intentional interference. The trial court granted the motions without specifying the basis for its judgment.

The Bujnochs appealed.

Held: There was a genuine issue of fact as to whether the emails could satisfy the statute of frauds, precluding summary judgment on the breach of contract claim. However, the Bujnochs failed to challenge all bases for the trial court’s summary judgment on the tortious interference claim. The judgment was reversed in part and affirmed in part.

The Thirteenth Court of Appeals first reiterated the standards governing summary judgments. A defendant who moves for summary judgment on an affirmative defense such as the statute of frauds must conclusively establish all elements of the defense to be entitled to judgment. The court must construe all evidence in favor of the non-movant.

Statute of Frauds

The statute of frauds requires certain types of contracts, including easement contracts, to be (1) in writing, and (2) signed by the person to be charged with the agreement or by someone lawfully authorized to sign for him. A series of emails may satisfy the writing requirement on a case-by-case basis, provided the messages include the essential terms of the agreement.

Copano claimed that the statute of frauds was not satisfied because (1) the emails could not be read together to satisfy the writing requirement, and no single email was sufficient; (2) even if the emails were read together, they omitted essential terms such as the identities of the parties and the description of the easement; (3) the emails used future language; and (4) the parties did not agree to contract electronically.

1. The emails could be read together.

The Thirteenth Court first rejected Copano’s argument that the emails could not be read together, instead holding that a written memorandum may consist of multiple signed writings. The emails between Schwartz and Sanford all related to the same transaction. Moreover, electronic signatures are binding in Texas, and Sanford signed each email.

The court noted that there has been much discussion in the case law regarding whether a signature block constitutes a binding electronic signature. In Cunningham v. Zurich American Ins. Co, 352 S.W.3d 519 (Tex. App.—Fort Worth 2011, pet. denied), the Fort Worth court held that a signature block alone did not demonstrate an intent to sign and was binding. Copano urged the court to follow Cunningham. However, this dispute was irrelevant because Sanford manually typed his name at the end of each email—at times including both his manually typed name and his signature block. Furthermore, Sanford’s deposition confirmed that the parties intended to conduct business electronically. Because the emails were all signed by the party to be charged, they did not need to expressly refer to one another to be read together.

2. The emails arguably included the essential terms.

Copano next argued that the emails did not include essential terms including the identity of the sellers and a description of the easement.

Regarding the identity of the sellers, the court first noted that the emails explicitly named Transportation Equipment, Inc. Furthermore, the Bujnochs were identified in the emails as “Schwartz’s clients.” The Texas Supreme Court has held that parol evidence may be used to clarify—but not provide—essential terms. Parol evidence could thus be used to clarify the identity of Schwartz’s clients as the Bujnochs.

Turning to the description of the easement, a description sufficient to afford a means of identifying the land with reasonable certainty was required. Here, the emails included a map and stated the second easement would be an additional 20 feet wide, be contiguous to the first easement, and lay generally on the north side of the existing easement. References to the original easement were permissible, because extrinsic evidence may be used to identify the precise property based on the description in the contract. The language in the emails described the size, shape, and boundaries of the easement. The description was comparable to similar language in BSG-Spencer Highway Joint Venture, G.P. v. Muniba Enters., Inc., No. 01-15-01109-CV, 2017 WL 3261365, at *7–8 (Tex. App.—Houston [1st Dist.] Aug. 1, 2017, no pet. h.) (mem. op.). There, the First Court of Appeals held that language describing an easement for ingress and egress was sufficient when the contract referenced a site map specifying the width and location of the easement, and testimony was offered regarding the easement’s historical use. Similarly here, the map, descriptions, and references to the existing easement were sufficient.

3. The emails’ “futuristic language” did not necessarily prevent them from being binding.

The Thirteenth Court next quickly rejected Copano’s challenge regarding the futuristic language of the emails. Although the Thirteenth Court of Appeals acknowledged that the parties’ emails contemplated a future formal agreement, the language was “nonessential” did not keep the emails from satisfying the statute of frauds because they already contained the essential elements of a contract.

4. The parties’ conduct created a fact issue regarding their intent to conduct business electronically.

Electronic records and signatures are binding in Texas if the parties have agreed to transact their business by electronic means. Although Copano claimed it did not agree to transact business electronically, the Thirteenth Court noted that an express agreement was unnecessary because the parties’ conduct and circumstances indicated the agreement. Sanford admitted at his deposition that he would negotiate via email, and acknowledged that Copano had honored agreements he reached by email. Thus, Copano’s argument did not support summary judgment on the statute of frauds issue.

In summary, the Thirteenth Court held that Copano was not entitled to summary judgment on the breach of contract claim because there were genuine issues of material fact regarding the binding nature of the emails.

Tortious Interference

Turning to the tortious interference claim, Kinder Morgan’s motion for summary judgment challenged (1) the existence of a valid contract between the Bujnochs and Copano, and (2) whether Kinder Morgan willfully and intentionally interfered with the contract. Before the trial court, the Bujnochs claimed they did not have enough time to conduct discovery to produce evidence that Kinder Morgan interfered with the contract. However, the Thirteenth Court noted that the Bujnochs did not file an affidavit or motion for continuance explaining the need for additional discovery. On appeal, the Bujnochs only claimed that summary judgment was improper as to the first challenged element—the existence of a valid contract—but did not address the summary judgment as to the interference element. Thus, the summary judgment was affirmed on the unchallenged ground.

In sum, the Thirteenth Court reversed the trial court’s judgment as to the Bujnochs’ breach of contract claim against Copano, and affirmed the judgment as to the tortious interference claim against Kinder Morgan.

Read the Full Opinion Here

Opinion Released December 21, 2017

In the Interest of A.M.L. & L.M.R., No. 13-17-00451-CV (Memorandum Opinion by Justice Rodriguez; Panel Members: Justices Benavides and Longoria)

In this appeal from an order terminating a mother’s parental rights, the Thirteenth Court of Appeals discussed the grounds for termination under the Texas Family Code.

Mother called 911 in 2015, admitting that she may have injured L.M.R. Deputy Brian Martin came to the scene to find several children in the front yard, one holding a baby. Mother stated that she threw L.M.R. into a cardboard box in the front yard, then threw her into the playpen. Mother had mental disabilities and suffered from severe panic attacks. She stated the was afraid she would hurt L.M.R. if she were not arrested. Mother was arrested and pleaded guilty to injury to a child, receiving probation. L.M.R. and A.M.L. were removed from the home.

The following month, in October 2015, the Department filed suit to terminate Mother’s parental rights. The trial court entered a family service plan, providing steps for Mother to regain custody of her children.

In January 2017, the Department amended its petition to terminate Mother’s rights to L.M.R. and A.M.L. as well as the relevant father’s rights. The Department claimed that Mother violated seven separate subsections of Texas Family Code Section 161.001, and that termination was in the children’s best interest. The trial court agreed, finding five different bases for termination: (1) knowingly allowing the children to be in surroundings dangerous to the children’s well-being; (2) engaging in conduct which endangers the children’s well-being; (3) executing an unrevoked or irrevocable affidavit of relinquishment; (4) having been convicted or placed on any form of probation for causing serious injury to a child; and (5) failing to comply with the terms of the service plan. The court terminated Mother’s rights.

Mother appealed, arguing that termination was erroneous because she substantially complied with the service plan.

Held: The family service plan was only one of the five independently sufficient bases for terminating Mother’s rights. The trial court’s judgment was affirmed.

The Texas Family Code allows for the involuntary termination of parental rights if there is clear and convincing evidence to support one predicate finding under Section 161.001(1), and termination is in the child’s best interest. Consequently, when multiple predicate subsections are alleged, an appellant must attack all grounds or at a minimum, the best interest finding, to prevail on a sufficiency challenge. Here however, Mother attacked only one predicate subsection: her failure to comply with the service plan. Mother’s challenge would not succeed even if the failure to comply with the service plan were the only basis for termination because substantial compliance with a service plan is insufficient. Regardless, the court found four other bases which are independently sufficient to support the judgment. The order of termination was affirmed.

Read the Full Opinion Here

Opinion Released December 14, 2017

In re Commitment of Santos Gomez III, No. 13-16-00614-CV (Opinion by Justice Rodriguez; Panel Members: Justices Benavides and Longoria)

In this appeal from a judgment civilly committing the defendant as a sexually violent predator, the Thirteenth Court of Appeals examined what types of expert testimony and medical evidence are admissible and required to support the sexually violent predator finding.

On May 30, 2008, Santos Gomez III’s probation was revoked, and he was convicted in two causes of seven counts of aggravated sexual assault of a child and one count of indecency with a child by contact. Gomez was sentenced to two ten-year terms of confinement.

In January 2016, the State filed a petition for civil commitment, alleging that Gomez was a sexually violent predator and requesting that he be committed for treatment and supervision. The commitment proceeding was tried before a jury, and Gomez testified in his own defense.

According to Gomez, the first six convictions for sexual assault involved an allegedly consensual relationship between Gomez and his then-girlfriend’s 12-year-old sister while Gomez was living with his girlfriend’s family. Gomez claimed he had sex with the girl only once, but admitted that he told the police differently and that he was convicted for multiple incidents. Gomez was placed on probation for his sexual assault of his girlfriend’s sister. His probation was revoked because he spent time alone with his minor daughters, and he was then convicted for sexually assaulting his children. Gomez denied that he assaulted his children, even though he had confessed the assaults to the police. Gomez testified that he lied to the police because he was under the influence of alcohol and drugs, and he had not slept.

The State then called forensic psychologist Stephen Thorne as an expert witness, and Gomez called forensic psychologist and neuropsychologist Antoinette McGarrahan. Both experts examined the defendant before trial and agreed regarding the relevant methodology. Both doctors used the PCL-R test to determine whether Gomez was a psychopath under the definition provided in the Texas Health and Safety Code.

Dr. Thorne scored Gomez 23 out of 40 on the PCL-R test, and testified that this was in the moderate range of psychopathic traits, but opined that Gomez did not qualify for the diagnosis. Dr. McGarrahan scored Gomez 12 out of 40, and testified that— like “most people”—Gomez had a low level of psychopathic traits. The doctors also used the Static-99R test to determine the likelihood that Gomez would engage in sexual violence in the future. Both doctors scored Gomez 5 on this test. Both characterized this as the higher end of the moderate range in terms of risk of future action.

The doctors disagreed however, regarding their analysis of other risk factors. Dr. Thorne testified that Gomez’s history of sexual deviance was one of the biggest risk factors indicating that he would engage in future acts of sexual violence. Dr. Thorne further diagnosed Gomez with pedophilic disorder and recognized that Gomez’s previously diagnosed major depressive disorder could affect his judgment. Dr. Thorne also noted that Gomez likely met the criteria for multiple drug-related conditions. Moreover, Gomez’s repeated violations of social norms—for example his sexual crimes, convictions for theft, and disciplinary issues in prison—reflected antisocial behavior that Dr. Thorne diagnosed as a “V-Code condition.” The V-Code condition is not recognized by the DSM-V. Nonetheless, Dr. Thorne testified this was another of the biggest risk facts indicating that Gomez would reoffend.

Dr. McGarrahan however, testified that she did not believe Gomez would engage in sexually violent acts in the future because his sexual offenses were all incestuous and not predatory. Dr. McGarrahan further noted that, although Gomez’s history of substance abuse was a risk factor, the abuse predisposed him to commit sexual violence but not predatory sexual violence. Dr. McGarrahan also downplayed the importance of Gomez’s antisocial behaviors, testifying that he did not meet the criteria for an antisocial disorder because he did not exhibit antisocial characteristics before age 15.

The experts then discussed the mitigating factors that lowered Gomez’s risk of reoffending. Dr. McGarrahan found no mitigating factors, but Dr. Thorne recognized that Gomez might be less likely to offend since he had no stranger victims, he had no male victims, and he was not a diagnosable psychopath.

Ultimately, Dr. Thorne testified that Gomez had a behavioral abnormality that made him likely to engage in predatory acts of sexual violence, while Dr. McGarrahan testified he did not.

The trial court directed a verdict on the first element required for civil commitment—that Gomez was a repeat sexually violent offender—and the jury found that Gomez was a sexually violent predator. The trial court entered judgment in accordance with the verdict, and civilly committed Gomez for treatment and supervision. Gomez appealed.

Held: A medical diagnosis is not necessary to support a finding that an individual is a sexually violent predator.  Moreover, the experts’ opinions were admissible, as was the evidence and testimony regarding Gomez’s psychopathic characteristics. The judgment was affirmed.

Chapter 841 of the Texas Health and Safety Code allows a person to be civilly committed as a “sexually violent predator” if he is a repeat sexually violent offender who suffers from a behavioral abnormality that makes the person likely to engage in predatory sexual violence. A “behavior abnormality” includes a congenital or acquired condition that predisposes the person to commit a sexually violent offense, rendering the person a menace to the health and safety of others. The State must prove the existence of a behavioral abnormality beyond a reasonable doubt.

Legal Sufficiency

Gomez challenged the legal sufficiency of the evidence to support the jury’s finding that he suffered from a behavioral abnormality that made him likely to engage in a predatory act of sexual violence, and thus qualified as a sexually violent predator. Gomez argued that (1) the State was required to prove a diagnosable mental condition recognized by the DSM-V, and (2) there was an analytical gap between Dr. Thorne’s diagnosis of a V-code condition and the alleged behavioral abnormality.

The Thirteenth Court of Appeals first held that the “behavioral abnormality” requirement can be satisfied without a mental health diagnosis. The Texas Supreme Court held in In re Commitment of Bohannan, 388 S.W.3d 296 (Tex. 2012) that a medical diagnosis is not required and is not the key issue in a commitment hearing for a sexually violent predator. The Legislature made major changes to the sexually violent predator statute after Bohannan, but did not change the definition of a “behavioral abnormality” or otherwise add a diagnosis requirement. Thus, the Legislature is presumed to have agreed with the judicial construction, and no diagnosis is necessary.

The Thirteenth Court of Appeals next turned to Gomez’s “analytical gap” challenge. Gomez argued that, even is a DSM-V diagnosis was not required by the statute, it was required in this case because the antisocial V-Code condition did not support his alleged behavioral abnormality.

The court noted that other courts of appeals have rejected the argument and held that there is no analytical gap when the expert was licensed in the field, reviewed the defendant’s records, conducted an evaluation in accordance with the accepted methodology in the field, and explained his reasoning to the jury. Dr. Thorne was licensed in his field, interviewed Gomez, viewed Gomez’s history, followed all of the relevant standards, conducted the relevant evaluations, and explained his methodology and observed risk factors to the jury. His opinion was well-reasoned; there was no analytical gap. Moreover, both Dr. Thorne’s and Dr. McGarrahan’s testimony supported the jury’s verdict. Thus, Gomez’s challenges to the sufficiency of the evidence were rejected.

Admission of PCL-R Evidence

Gomez next argued that the trial court abused its discretion by admitting testimony about the PCL-R test and about Gomez’s psychopathic traits because it was irrelevant and did not lead to a diagnosis. Dr. Thorne explained the test to the jury, testifying that it was used by forensic psychologists to evaluate behavioral abnormalities. Gomez’s own expert testified regarding the same PCL-R test and referred to it as “the gold standard” for determining whether a person is a psychopath. The Thirteenth Court held that the evidence was not only admissible, but required by the Health and Safety Code. Furthermore, the Rules of Evidence provided for the disclosure of the bases for the experts’ opinions. The trial court did not abuse its discretion by admitting the testimony and evidence related to the PCL-R test.

Gomez’s challenges were overruled and the trial court’s judgment affirmed.

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Opinion Released December 7, 2017

Morin v. Rivera, No. 13-17-00096-CV (Memorandum Opinion by Justice Rodriguez; Panel Members: Chief Justice Valdez and Justice Hinojosa)

In this appeal taken two years after a default judgment was entered, the Thirteenth Court of Appeals discussed the necessary requirements for a judgment to be final and appealable.

Hector Morin sold Ruben Rivera a plot of land, and he kept a lien on the property. Morin then crashed while driving Rivera’s vehicle and towing Rivera’s boat. Rivera claimed Morin agreed to credit the amount of damage he caused in the wreck against Rivera’s payments for the land. The parties began disputing how much they owed one another, and Morin threatened to foreclose.

Rivera sued Morin, seeking (1) partition of the property; (2) title to and possession of the property; (3) a temporary restraining order to prevent Morin from misusing the property; (4) a temporary injunction to protect and preserve the property; (5) temporary and permanent injunctions prohibiting Morin from harassing Rivera or his friends or lessees; (6) attorney’s fees; (7) costs; and (8) post-judgment interest. Morin failed to appear for trial, and the trial court awarded Rivera title to and ownership of the land, along with attorney’s fees and court costs.

Morin filed a timely motion for new trial on October 16, 2014, and the motion was overruled by operation of law. On July 15, 2016—more than a year later—the trial court entered an order purporting to grant Morin’s motion for new trial. Rivera filed a motion to vacate the order and alternatively, a plea to the jurisdiction, both contending that the trial court’s plenary power had expired. Morin responded that the default judgment was interlocutory because it did not dispose of all claims, and thus the trial court had jurisdiction. On January 18, 2017, the trial court granted Rivera’s motion to vacate, holding that the new trial order was void.

Morin appealed, and Rivera filed a motion to dismiss the appeal for want of jurisdiction.

Held: The trial court’s default judgment was interlocutory. The appeal was dismissed for want of jurisdiction.

The court first addressed the validity of the trial court’s January 18, 2017 order declaring its new trial order void.

A timely motion for new trial that is not ruled upon is overruled by operation of law 75 days after the date the judgment was signed. The trial court retains plenary power for another 30 days. However, even after its plenary power has expired, a trial court may sign an order declaring a prior order or judgment void. Here then, the trial court’s January 18, 2017 order declaring its new trial order void was proper and effective.

The Thirteenth Court then turned to the key issue on appeal: whether the trial court’s default judgment was final or interlocutory. A judgment is only final if it actually disposes of all claims and all parties. However, a default judgment that does not dispose of all claims or parties can be final if it unequivocally expresses an intent to finally dispose of the case, such as an explicit statement that “this judgment finally disposes of all parties and all claims and is appealable.” Although the trial court’s judgment awarded Rivera costs and allowed him to begin enforcing the judgment through “writs and processes,” it did not address Rivera’s requests for injunctive relief or for post-judgment interest. Furthermore, the judgment did not contain an unequivocal explicit statement that it was final and appealable. Thus, the default judgment was interlocutory and the matter was still pending before the trial court. The Thirteenth Court of Appeals dismissed the appeal for want of jurisdiction.

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Opinion Released November 30, 2017

Ernesto Lugo v. Donna Independent School District Board of Trustees, No. 13-16-00666-CV (Opinion by Chief Justice Valdez; Panel Members: Justices Contreras and Hinojosa)

In this appeal from an order granting summary judgment to the Donna Independent School District Board of Trustees, the Thirteenth Court of Appeals discussed the requirements of the Texas Open Meetings Act as well as whether a claim for attorney’s fees can revive an otherwise-moot case.

Ernesto Lugo was a trustee on the Donna Independent School District Board of Trustees in 2016. Two other trustees resigned, and Lugo wanted to fill the vacancies with a special election. Lugo and another board member—Efren Ceniceros—publicly announced they would not attend a board meeting on January 27, 2016 because the agenda included an item that would fill the two vacant seats by appointment, so the meeting was not held. A new agenda was then posted for a meeting on February 9, 2016, stating only that the trustees would discuss possible action regarding calling a special election to fill the vacant seats. At the meeting, Lugo moved to hold a special election, but the motion failed. Another trustee member then moved to amend Lugo’s motion to fill the vacant seats by appointing two specific individuals, and the motion was approved.

Lugo filed suit claiming that the Board violated the Texas Open Meetings Act by failing to provide notice of its action in a posted agenda. The Board counter-sued for declaratory relief and sought to recover attorney’s fees.

Lugo moved for partial summary judgment seeking a declaratory judgment that the appointments were void for violating TOMA. The Board responded and filed its own motion for partial summary judgment, claiming that there was a genuine issue of material fact as to whether the public received sufficient notice of the subject of the meeting. The Board further contended that it was entitled to summary judgment because it was not necessary for a governmental unit to include all possible outcomes in an agenda when it indicated that it would consider a given topic.

The trial court denied Lugo’s motion for summary judgment and granted the Board’s motion. Lugo appealed.

Held: The Board violated TOMA because it did not give notice of its intent to discuss or appoint trustees to fill the vacancies. The trial court’s judgment was reversed and the case remanded for entry of partial summary judgment for Lugo.


The Thirteenth Court of Appeals began by reviewing whether the appeal was moot. The Board argued that the case was moot because the two appointees no longer held positions on the Board, while Lugo argued that the case was not moot because of his live claim for attorney’s fees which turned on the validity of his TOMA claim. The Thirteenth Court cited the Texas Supreme Court’s decision in Allstate Ins. Co. v. Hallman, where the Court held that a claim for attorney’s fees “breathes life” into an otherwise-moot appeal. Applying Hallman to Lugo’s appeal, the Thirteenth Court held that the case was not moot because if Lugo was correct that the Board violated TOMA, he would be entitled to attorney’s fees.

TOMA Violation

The court then proceeded to analyze the alleged TOMA violation. Section 551.041 of the Texas Government Code requires a governmental body to “give written notice of the date, hour, place, and subject of each meeting held by the governmental body,” and to post the notice at least 72 hours before the meeting. The notice must fairly alert the public as to the topic for consideration.

Lugo argued that the Board’s notice did not support appointment of the trustees because the notice referenced only the statutory provision regarding replacement via special election, and not the alternative procedure for replacement of trustees by appointment. During oral argument, the Board conceded that the agenda did not give notice that the Board would appoint replacement trustees. The Thirteenth Court of Appeals held that a TOMA violation occurred because the notice did not alert the public that the Board would discuss or actually appoint replacement trustees. Thus, the trial court’s judgment was reversed, and the case remanded for entry of partial summary judgment in favor of Lugo and to determine attorney’s fees.

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