Opinions Released August 3, 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.

Henderson v. Blalock, No. 13-16-00175-CV & 13-16-00176-CV (Memorandum Opinion by Chief Justice Valdez; Panel Members: Justices Longoria and Hinojosa)

In this appeal from an order grating summary judgment, the Thirteenth Court of Appeals addressed the evidence necessary to rebut a presumption of proper service and the conditions in which a bill of review is and is not available.

Joe Henderson sued Marilyn Kay Blalock in 2010, claiming he adversely possession a plot of her land in Rosharon, Texas. The trial court dismissed the case without prejudice for want of prosecution, but Henderson moved to reinstate. The trial court denied Henderson’s motion, and the dismissal was affirmed on appeal.

In 2014, Henderson refiled the lawsuit while also filing a bill of review to reinstate the original action. Both Henderson and Blalock proceeded pro se. Henderson filed a notice of appearance listing his address as a residence in Houston.

Blalock filed motions for summary judgment as to both the refiled lawsuit and the bill of review. Blalock served Henderson with the motions via certified mail, return receipt requested at the Rosharon address. Henderson did not respond, and the trial court entered judgment for Blalock, ordering that Henderson take nothing. Henderson appealed, and the case was transferred to the Thirteenth Court of Appeals pursuant to a docket equalization order. Blalock did not file a brief.

Held: Henderson rebutted the presumption of proper service and established that he did not have notice of Blalock’s motion for summary judgment. However, Henderson could not maintain a bill of review in light of the procedural history of the previous case. Thus, the trial court’s judgment was reversed as to the refiled suit, but affirmed as to the dismissal of Henderson’s bill of review.


First, Henderson argued that he did not receive notice of the motions for summary judgment and thus the trial court erred by dismissing his claims. Blalock’s motions contained certifications that she served Henderson by mail, presenting prima facie evidence that service was proper and creating a presumption that the motions were received. However, Henderson challenged this presumption by citing the publicly-available United States Postal Service tracking information for Blalock’s motions—of which the Thirteenth Court took judicial notice—reflecting that the motions were returned as undeliverable. Moreover, Henderson’s own filings—namely, his petition and notice of appearance—reflected that he lived in Houston rather than Rosharon. Blalock even testified under oath that she had sold the Rosharon property to third parties and that Henderson lived in Houston and not in Rosharon. Thus, Henderson rebutted the presumption of proper service, and the trial court erred by entering summary judgment. The trial court’s judgment as to the refiled lawsuit was reversed.

Bill of Review

The Thirteenth Court next turned to the bill of review. The court reiterated the rule that a bill of review cannot be brought were the plaintiff moved to reinstate the prior judgment and filed an unsuccessful direct appeal of the judgment in which he raised or could have raised the same contentions. Here, Henderson filed a motion to reinstate and unsuccessfully challenged the trial court’s denial of this motion on direct appeal. Moreover, the record and the Fourteenth Court of Appeals’ opinion—issued on direct appeal from the initial adverse possession case—revealed that the issues raised in Henderson’s bill of review were raised or could have been raised in his original appeal. Thus, the trial court’s judgment was affirmed as to the dismissal of the bill of review.

Read the Full Opinion Here

State v. Traylor, No. 13-13-00371-CR (Opinion by Chief Justice Valdez; Panel Members: Justices Rodriguez and Benavides)

On May 25, 2017, the Thirteenth Court of Appeals issued an opinion in Traylor v. State. A summary of that opinion can be found at http://www.brandyvosslaw.com/13th-court-of-appeals-update/2017/6/26/opinions-released-may-25-2017. The court withdrew this opinion on August 3, 2017, and reissued an identical version of the document with one key change.

Rather than remanding the case for a new trial on the second-degree, lesser -luded offense of burglary of a habitation, the court added a new section at the end of its opinion analyzing the proper remedy. The court held that the jury necessarily found Traylor guilty of second-degree burglary when it convicted him of first-degree burglary. Furthermore, the evidence was legally sufficient to support the conviction for the second-degree offense. Thus, the Thirteenth Court of Appeals reversed Traylor’s conviction for first-degree burglary as a violation of his double jeopardy rights, but rendered judgment against him for second-degree burglary. The case was remanded for sentencing.

Read the Full Opinion Here

Ex parte J.C.D., No. 13-16-00534-CV (Memorandum Opinion by Justice Longoria; Panel Members: Chief Justice Valdez and Justice Hinojosa)

 In this appeal from an order expunging the petitioner’s prior arrest, the Thirteenth Court of Appeals analyzed whether an arrest may be expunged if the original charge underlying the arrest was dismissed, but the defendant received deferred adjudication on a separate but related offense.

J.C.D. was arrested for robbery in 2006. He was subsequently indicted for both robbery and assault causing bodily injury. J.C.D. agreed to a plea bargain in which the robbery charge was dismissed, and he received deferred adjudication for the assault.

In 2016, J.C.D. filed a petition to expunge the record of his arrest for robbery. The Departmentof Public Safety responded by claiming J.C.D. was not entitled to expunction because he had been sentenced to community supervision for an offense stemming from the arrest. The trial court granted the expunction, and the Department filed a restricted appeal.

Held: J.C.D. did not qualify for expunction because his arrest resulted in community supervision for the assault offense. The trial court’s judgment was reversed and rendered.

To prevail on a restricted appeal, the appellant must file a notice of appeal within six months after the judgment is signed, be a party to the underlying action, not participate in the hearing resulting in the judgment complained of, and show error apparent on the face of the record. Here, the Department filed its appeal within six months of the judgment, was a party to the expunction, and did not participate in the expunction hearing. The Department claimed that error was apparent on the face of the record because the law did not permit expunction since J.C.D. served community supervision for the arrest.

The Thirteenth Court of Appeals noted that, although expunction proceedings are generally reviewed for an abuse of discretion, issues of law such as statutory interpretation are reviewed de novo.

The expunction statute in Chapter 55 of the Texas Code of Criminal Procedure is a narrow exception to the general rule that court records are public documents. The statute provides that a person is entitled to have a prior arrest expunged if the person was released on the charge and has not been convicted or sentenced to court-ordered community service for the offense. Texas courts have held that, for a defendant to qualify for an expunction under this statute, all charges arising from the arrest must meet the statute’s requirements. An expunction occurs at the level of the arrest; individual charges within that arrest are not separately expungable.

Here, the relevant facts were undisputed. J.C.D.’s robbery charge was dismissed, but he was sentenced to 2 years deferred adjudication for assault causing bodily injury. Thus, J.C.D.’s arrest resulted in court-ordered community supervision and did not qualify for expunction under the statute. The trial court’s judgment was reversed, and the Thirteenth Court rendered judgment denying J.C.D.’s petition for expunction.

Read the Full Opinion Here