Opinions Released July 13, 2017

In this weekly blog, the Law Offices of Brandy Wingate Voss, PLLC will summarize recent decisions from the Thirteenth Court of Appeals and provide links to decisions on the court’s website.

Calvillo v. Guerra, No. 13-16-00115-CV (Memorandum Opinion by Justice Longoria; Panel Members: Chief Justice Valdez and Justice Benavides)

In this appeal from an order refusing to enforce a receiver’s fees reflected in a bill of costs—but not in the judgment—the Thirteenth Court discussed the proper procedure for securing payment of outstanding receivership fees.

Antun Domit divorced Maria De Los Angeles Guerra in 2006, and the court appointed David Calvillo as a receiver to control the couple’s properties and businesses. The court set Calvillo’s compensation and directed him to send periodic statements of his services to Antun and Maria. If neither party objected within 10 days of receiving the invoice, Calvillo could pay himself for the amount.

Calvillo served as receiver from 2008 through 2013. In December 2013, the trial court signed the final divorce decree, discharged Calvillo, and held that the costs of the receivership would be paid 75% by Antun and 25% by Maria, without specifying an amount of fees. Calvillo moved to amend the judgment, informing the court that he was owed approximately $289,000 from an unchallenged, unpaid bill sent in June 2013, that he had incurred additional unpaid fees since that date, and that he had hired Cox & Smith for $125,000 to represent the marital estate in an involuntary bankruptcy. In total, the unpaid bills for Calvillo and Cox & Smith totalled more than $432,000. The trial court did not act on Calvillo’s motion.

Antun appealed, and Calvillo did not file a separate notice of appeal. While the appeal was pending, Calvillo submitted a bill to the district clerk for $450,072.40—an amount slightly higher than that in his motion to modify the judgment. The district clerk included Calvillo’s bill in the bill of costs for the case. The Thirteenth Court then issued an opinion affirming the trial court’s decree.

Calvillo filed an abstract of judgment against Maria for 25% of the total fees or $112,500. He then moved the trial court to appoint a receiver, claiming the appointment was necessary for him to collect the $100,000 remaining in unpaid fees. Maria responded by asking the court to retax the costs and strike Calvillo’s fees from the bill of costs. The trial court held a hearing and found that there was no judgment against Maria for the receivership costs. The court denied Calvillo’s request for turnover relief, declared the abstract of judgment void, and ordered Calvillo to update the property records. Finally, the court refused to consider Calvillo’s motion to amend the divorce decree, claiming it no longer had jurisdiction over the receivership. Calvillo appealed.

Held: The trial court did not abuse its discretion by refusing to enforce the bill of costs as a judgment and retaxing the costs. The judgment was affirmed.

On appeal, Calvillo challenged the trial court’s order retaxing costs and the court’s refusal to provide turnover relief.

Retax costs

Calvillo argued that the clerk’s bill of costs was the functional equivalent of a final judgment, and thus the court should not have granted Maria’s motion to retax costs. The Thirteenth Court of Appeals held, however, that the trial court never awarded Calvillo fees in the judgment. Although Calvillo attempted to characterize the bill of costs as an invoice which neither party objected to within ten days, the Thirteenth Court emphasized that the receivership had already terminated when the bill of costs was finalized, and the trial court’s order allowing Calvillo’s bills to become final within ten days governed only while the receivership remained in effect. When the receivership terminated, it was the trial court’s responsibility to award Calvillo any outstanding fees; Calvillo could not simply add these fees to the bill of costs. The Thirteenth Court thus held that the trial court properly granted Maria’s motion to retax costs.

Turnover relief

Calvillo also argued that the trial court should have granted his request for a turnover order because the court had the jurisdiction and authority to treat the bill of costs as a judgment and grant him his fees. However, the Thirteenth Court reiterated its finding that the bill of costs was not a judgment and noted that a turnover order is a procedural tool for judgment creditors. Because there was no judgment granting Calvillo his fees, the trial court did not abuse its discretion by denying the turnover order.

The Thirteenth Court also added that the trial court was correct that it had no jurisdiction to award fees by amending the prior judgment. Calvillo’s original motion to amend had been overruled by operation of law 75 days after the signing of the divorce decree, and the trial court’s plenary power had expired.

Read the Full Opinion Here

State v. Martinez, No. 13-15-00592-CR (Opinion by Justice Hinojosa; Panel Members: Chief Justice Valdez and Justice Longoria)

In this interlocutory appeal from a motion suppressing the results of a DWI defendant’s blood analysis, the Thirteenth Court addressed whether a defendant has a reasonable expectation of privacy in a blood sample provided to hospital staff.

Juan Martinez, Jr. was involved in a traffic accident in Beeville, Texas, and was taken to the hospital in an ambulance. While there, a nurse drew his blood for medical purposes. Martinez later told the staff he did not want any testing done on his blood or urine, removed his IV, and left the hospital. Moments later, DPS Trooper John Richard Quiroga arrived at the hospital to investigate. Trooper Quiroga directed the hospital staff to preserve Martinez’s blood. The following day, Sergeant Daniel Keese got a grand jury subpoena for the blood sample and took Martinez’s blood to the DPS lab for testing.

Martinez was indicted for intoxication manslaughter. The trial court suppressed DPS’s test results, finding that although the seizure of the blood was proper under the Grand Jury Subpoena, the search was executed without a warrant and with no exigent circumstances. The State filed an interlocutory appeal, claiming that the trial court’s ruling was contrary to case law from the Texas Court of Criminal Appeals.

Held: The analysis of Martinez’s blood sample was a discrete search conducted without a warrant, in violation of Martinez’s Fourth Amendment rights. The trial court’s order was affirmed.

The Thirteenth Court reiterated that the Fourth Amendment protects against unreasonable searches and seizures, encompassing intrusions of a person’s objectively reasonable expectation of privacy. Proper police conduct is presumed, however, and a defendant moving to suppress evidence bears the initial burden to rebut this presumption. This burden is satisfied if a search or seizure occurs without a warrant. Here, the analysis of Martinez’s blood was conducted without a warrant.

The State claimed that, after the trial court granted Martinez’s motion to suppress, the Texas Court of Criminal Appeals issued its decision in State v. Huse, 491 S.W.3d 833 (Tex. Crim. App. 2016), rejecting suppression arguments parallel to those relied upon by Martinez.

The Court of Criminal Appeals has previously recognized three stages of a blood draw in which the Fourth Amendment might be implicated: (1) the physical taking of the blood from the body; (2) the exercise of control over testing the blood; and (3) the review of the results. In Huse, the Court reaffirmed its prior opinion in State v. Hardy, 963 S.W.2d 516 (Tex. Crim. App. 1997), and held that a DWI offender has no legitimate expectation of privacy in his medical records. In both Huse and Hardy, the State obtained a copy of the defendant’s medical records after hospital staff drew and tested blood for medical purposes following a traffic accident. The Thirteenth Court emphasized that in Huse, the State sought only medical records; they did not get the defendant’s blood and conduct their own analysis. Thus, the case was not controlling.

Instead, the Thirteenth Court compared Martinez’s situation to State v. Comeaux, 818 S.W.2d 46 (Tex. Crim. App. 1991). There, the defendant voluntarily gave his blood to hospital staff following a car accident, and the staff gave the sample to the police who conducted their own testing and analysis. A plurality of the Court of Criminal Appeals held that the defendant had a legitimate expectation of privacy in the blood sample, and no exigent circumstances existed to justify the warrantless search.

Similarly here, the analysis of Martinez’s blood sample by the State was a discrete search, implicating the Fourth Amendment. The State did not have a warrant for the search and provided no argument or evidence regarding exigent circumstances. Thus, the search violated Martinez’s Fourth Amendment rights and was properly suppressed.

Read the Full Opinion Here