Opinion Released November 21, 2017

Briggs v. State, No. 13-15-00147-CR (Opinion on En Banc Reconsideration by Justice Rodriguez; Dissenting Opinion on Reconsideration by Justice Contreras, joined by Justice Longoria)

In this reconsideration of a direct appeal from an intoxication manslaughter conviction, the Thirteenth Court of Appeals analyzed whether developments in Fourth Amendment case law rendered the defendant’s plea involuntary.

Sandra Coy Briggs was involved in a car accident resulting in serious bodily injury to a public servant. Briggs’ blood was drawn with neither her consent nor a warrant, and the blood test revealed a blood-alcohol content level of 0.14 percent. Briggs pleaded no contest to intoxication manslaughter of a public servant in 2012. A jury sentenced Briggs to 45 years’ confinement.

After the time for appeal had expired, Briggs filed a writ of habeas corpus with the Court of Criminal Appeals. The Court granted Briggs an out-of-time-appeal and ordered that all timelines be calculated as if the sentence had been imposed on the date the Court issued its mandate.

Briggs then filed a motion for new trial, arguing that her plea was involuntary. Briggs argued that her counsel misrepresented the law by advising her that her warrantless blood draw would be admissible because such blood draw was mandatory under Texas Transportation Code section 724.012. However, since Briggs’ plea, the Supreme Court issued Missouri v. McNeely, 133 S.Ct. 1552 (2013), and the Texas Court of Criminal Appeals issued State v. Villarreal, 475 S.W.3d 784 (Tex. Crim. App. 2015), both holding that a per-se rule such as section 724.012 could not serve as an exception to the warrant requirement.

The trial court held a hearing on Briggs’ motion for new trial. Briggs’ trial counsel testified that he had advised her that the blood evidence would be admissible because Texas Transportation Code section 724.012 provided an exception to the warrant requirement. Briggs testified similarly, stating that she believed her blood was drawn pursuant to the mandatory blood-draw statute, and that she would have wanted a trial on the merits if she had known the evidence would be inadmissible.

The State called several witnesses who testified to alternative bases for exigent circumstances that could have justified the warrantless blood draw. Briggs objected to the testimony, noting that the issue before the court was whether Briggs relied on a misrepresentation of the law; not the existence of exigent circumstances. The trial court overruled the objection and heard testimony from a police sergeant. The sergeant opined that a case involving serious bodily injury was always exigent due to the need for an accurate read of the defendant’s blood-alcohol level. Moreover, three hours had already elapsed by the time Briggs’ actions were determined to be the cause of the accident. It would have taken an additional 1.5 hours to obtain a blood warrant, which would have risked the blood decaying.

The trial court issued findings of fact and conclusions of law, holding that that, although McNeely applied retroactively, the State nonetheless had exigent circumstances justifying the warrantless blood draw. The findings did not explicitly address the involuntariness of Briggs’ plea, but overruled her motion for a new trial regardless.

Briggs appealed. The case was transferred from the Fourth Court of Appeals to the Thirteenth Court of Appeals pursuant to an order from the Texas Supreme Court. The Thirteenth Court of Appeals issued an opinion reversing the trial court’s judgment on March 9, 2017. Then, the court granted the State’s motion for en banc reconsideration, withdrew its March opinion, and issued a nearly-identical en banc opinion in its place, along with a dissent from Justice Contreras.

Held: Briggs’ plea was involuntary because it was entered in reliance on a misrepresentation of the law, which has since been clarified by McNeely and Villarreal. The trial court’s judgment is reversed and remanded.

The Thirteenth Court addressed three issues on appeal: (1) whether McNeely established  a new rule; (2) whether such rule applied retroactively; and (3) if McNeely did apply retroactively, whether it rendered Briggs’ plea involuntary.

The Thirteenth Court first held that McNeely did not establish a new constitutional rule, but simply clarified Schmerber. Schmerber established a totality of the circumstances test, and McNeely merely reiterated that the State could not rely on a per-se rule regarding exigent circumstances due to metabolization of alcohol. Yet, even if McNeely were a new rule, it would apply to Briggs’ case because new rules regarding constitutional criminal procedure apply retroactively to all non-final cases, including those pending on direct appeal. Here, when Briggs’ writ was granted allowing an out-of-time appeal, it put her in the position to request a new trial and challenge her conviction on direct appeal. Thus, even if McNeely announced a new rule, it would apply to Briggs’ non-final conviction regardless.

Next, the court addressed the State’s argument that Briggs failed to preserve her challenge to the blood evidence by neglecting to file a pretrial motion to suppress. The Thirteenth Court of Appeals rejected this argument, noting that Briggs was challenging the denial of her motion for new trial on the basis of her involuntary plea, not the introduction of the blood evidence.

The court then proceeded to analyze the trial court’s denial of Briggs’ motion for new trial under an abuse of discretion standard. The court began by noting that a plea of no contest based on erroneous information is involuntary.

After McNeely, the Texas Court of Criminal Appeals held in Villarreal that Texas Transportation Code section 724.012—which requires a blood draw in motor vehicle accidents involving serious bodily injury—is not an exception to the warrant requirement. Although a police officer must conduct a blood draw, he still needs to obtain a warrant for the blood draw if no other exception to the warrant requirement exists. Yet, both the arresting officer and Briggs’ counsel testified at the hearing on Briggs’ motion for new trial that they understood section 724.012 to be an exception to the warrant requirement, and that they advised her accordingly. Briggs also testified at the hearing that this was her understanding of the law.

The Thirteenth Court thus concluded that Briggs entered her plea based on a misunderstanding of the law as it related to the admissibility of her blood evidence. Consequently, Briggs’ plea of no contest was involuntary.

Moreover, although the trial court explicitly ruled on Briggs’ motion for new trial based on the existence of exigent circumstances, it should not have considered the issue, since the motion for new trial was based on voluntariness. Furthermore, the court did not explicitly rule on Briggs’ claim that her plea was involuntary. The Thirteenth Court held that it would not imply a ruling by the trial court that Briggs’ plea was voluntary because such ruling would have been unreasonable. Thus, the court of appeals held that the trial court abused its discretion by denying Briggs’ motion for new trial.

Read the Full Opinion Here

Dissent

Justices Contreras and Longoria were members of the original three-justice panel that issued the initial decision in March 2017, but dissented on reconsideration. Justice Contreras wrote the dissenting opinion, in which Justice Longoria joined.

Justice Contreras quoted extensively from Brady v. United States and McMann v. Richardson, two United States Supreme Court cases involving claims that the defendant’s plea was involuntary because it was based on legal advice that was undermined by subsequent case law. In both cases, the Supreme Court held that the pleas were voluntary because a reasonably competent attorney’s miscalculation of the strength of the State’s case does not negate voluntariness. Justice Contreras noted that the Texas Court of Criminal Appeals held similarly in Ex parte Palmberg. In Palmberg, the Court held that a defendant’s plea was not rendered involuntary by his subsequent discovery that the State could not prove the substance he possessed was cocaine because there was not enough to test. Citing Brady and McMann, the Court reiterated that “the voluntariness of a defendant’s guilty plea is not contingent upon the awareness of the full dimension of the prosecution’s case,” and clarified the voluntariness question as “whether [the defendant] was aware of sufficient facts—including an awareness that there are or may be facts that he does not yet know—to make an informed and voluntary plea.”

Justice Contreras acknowledged that Brady, McMann, and Palmberg were petitions for habeas corpus, but stated that the same standard and law governed direct attacks on the voluntariness of a plea.  Justice Contreras further acknowledged that McNeely applied retroactively, but disputed whether Briggs’s counsel’s advice rose to the level of a misrepresentation so as to render Briggs’s plea involuntary. Furthermore, to the extent Briggs wished to challenge her counsel’s advice as a misrepresentation, it should be analyzed under the Strickland standard as an ineffective assistance of counsel claim. The Court of Criminal Appeals has recognized that Strickland applies when a defendant enters an allegedly involuntary plea upon the advice of counsel, and Briggs did not satisfy the Strickland standard. Strickland requires a defendant to show (1) that counsel’s behavior fell below the standard of objective reasonableness; and (2) that the deficient behavior was prejudicial and resulted in a fundamentally unfair outcome. When Briggs’s counsel gave his advice, the majority of the legal community shared his view that Briggs’s blood evidence was admissible. Regardless, the trial court found that there were exigent circumstances justifying the blood draw, and thus Briggs’s  counsel’s behavior was not prejudicial.

Justice Contreras thus found that the record supported the trial court’s implicit finding of voluntariness and dissented from the en banc opinion on reconsideration.

Read the Full Opinion Here

Opinion Released November 16, 2017

Joan Price v. University of Texas at Brownsville-Texas Southmost College, No. 13-16-00351-CV (Memorandum Opinion by Justice Contreras; Panel Members: Chief Justice Valdez and Justice Hinojosa)

In this appeal from an order denying the plaintiff’s bill of review, the Thirteenth Court of Appeals discussed the procedural timeline for filing a suit under the Texas Labor Code.

Joan Price sued the University of Texas at Brownsville-Texas Southmost College (“UTB-TSC”) in 2011, claiming she suffered discrimination and retaliation when UTB-TSC forced her to resign and then failed to rehire her. The trial court set the case for trial on November 5, 2012. On October 3, 2012, UTB-TSC filed a plea to the jurisdiction based on sovereign immunity, a motion for summary judgment, and a motion for continuance of the trial date based on a scheduling conflict. The court set all three motions for a hearing on October 29, 2012.  Four days before the hearing, Price’s counsel faxed a letter to the court indicating that he had a scheduling conflict and could not attend the October 29 hearing, but that he agreed to UTB-TSC’s requested continuance.

The trial court held the scheduled hearing on October 29, 2012. The court noted on the record that there was nothing in the file indicating Price’s unavailability, then granted UTB-TSC’s plea to the jurisdiction without addressing the other motions.

On November 28, 2012, Price moved to reinstate her case under Texas Rule of Civil Procedure 165a(3). UTB-TSC argued that Rule 165a(3) was inapplicable because the case was dismissed for want of jurisdiction, not want of prosecution. The trial court initially set a hearing to determine a trial date before realizing the order was erroneous and issuing a new order setting a hearing on Price’s motion to reinstate on February 28, 2013. After the hearing, the court found that the motion to reinstate had already been overruled by operation of law on January 12, 2013, and that the trial court lost plenary power on February 11, 2013. Regardless, the trial court stated that Rule 329b was not applicable and Price should have filed a motion for new trial rather than a motion to reinstate.

Price filed a petition for bill of review, asking the court to reinstate the case. UTB-TSC responded with a plea to the jurisdiction with no evidence attached. The trial court granted UTB-TSC’s plea, and Price appealed.

Held: Price’s underlying suit was untimely, depriving the trial court of jurisdiction and undermining her attempt to prove a meritorious claim in her bill of review. The trial court’s judgment was affirmed.

The Thirteenth Court of Appeals began by reiterating the rules applicable to bills of review. To obtain a bill of review setting aside a judgment that is no longer appealable, a plaintiff must provide prima facie evidence of (1) a meritorious claim or defense; (2) the petitioner was prevented from making the meritorious claim by official mistake or by the opposing party’s accident or wrongful act; and (3) the inability to make the meritorious claim or defense was not due to the petitioner’s own fault or negligence.

The Thirteenth Court first noted that Price did not allege a basis for the waiver of sovereign immunity in her bill of review proceeding. Nonetheless, the parties appeared to agree that the trial court had jurisdiction if Price provided prima facie evidence of the three elements necessary for a bill of review.

The Thirteenth Court held that Price did not show a meritorious claim because her suit was untimely. To maintain her suit under the Texas Labor Code, Price was required to exhaust her administrative remedies by filing a complaint with the Texas Workforce Commission, and obtaining a written notice of the complainant’s right to file suit. After receiving the written notice, suit must be filed within sixty days. However, Price’s petition reflected that she received notice of her right to file a civil action on June 22, 2011 and did not file her petition until 62 days later, on August 23, 2011. Thus, the trial court lacked jurisdiction over the underlying suit and Price did not show that she had a meritorious claim. The trial court’s judgment was affirmed.

Read the Full Opinion Here

Opinion Released November 9, 2017

City of Donna v. Ramirez, No. 13-16-00619-CV (Opinion by Justice Hinojosa; Panel Members: Chief Justice Valdez and Justice Contreras)

In this interlocutory appeal from a denied plea to the jurisdiction, the Thirteenth Court of Appeals analyzed the standing requirements under the Texas Open Meetings Act (“TOMA”), and considered whether the plaintiff raised a fact issue sufficient to invoke sovereign immunity under TOMA and the Texas Whistleblower Act.

Oscar Ramirez served as the city manager of the City of Donna and was allegedly terminated from his position in a special meeting of the city council on March 31, 2014. Ramirez claimed the termination occurred because he reported to the Chief of Police that a municipal judge and several members of the city council had ordered him to discount fees for city services such as water bills and cemetery fees.

Pursuant to the City’s charter, Ramirez requested a hearing before the city council regarding his termination, and the hearing was scheduled for a special meeting on April 14, 2014. Ramirez’s attorney repeatedly requested that the hearing be rescheduled, and the city secretary believed the hearing had in fact been rescheduled. The city secretary marked through the April 14, 2014 agenda inside the front door of city hall with the word “cancelled,” and sent text messages to each council member on April 14 notifying them that the meeting would not occur that day. Yet, the hearing proceeded on April 14, and the council affirmed its termination decision.

Ramirez filed suit against the City alleging violations of the Texas Whistleblower Act and the Texas Open Meetings Act. Ramirez also sued the City’s mayor and councilmembers in their individual capacities, seeking a declaratory judgment that the councilmembers interfered with day-to-day operation of the City and violated the Texas Constitution by ordering him to discount city fees.

The defendants filed a plea to the jurisdiction, claiming Ramirez could not establish a violation of TOMA or the Whistleblower Act, and thus could not establish a waiver of governmental immunity, and that the declaratory judgment action was not ripe. The defendants attached two depositions and sections from the City’s Charter to the plea. Ramirez responded with four pieces of evidence, including minutes and the agendas from the two city council special meetings, a copy of the meeting agenda marked “cancelled,” excerpts from five depositions, correspondence between Ramirez and the City regarding the termination, and Ramirez’s affidavit regarding his reports to the police chief.

The trial court held a hearing on the plea to the jurisdiction and denied the motion. The defendants filed an interlocutory appeal.

Held: Ramirez had standing to bring a claim under TOMA and raised a fact issue regarding the jurisdictional facts sufficient to invoke the corresponding waivers of sovereign immunity. The trial court’s interlocutory order denying the defendants’ plea to the jurisdiction was affirmed.

The court began by reiterating the rules governing pleas to the jurisdiction.  When a plea to the jurisdiction challenges the existence of a jurisdictional fact, the plea is reviewed similar to a traditional motion for summary judgment.

TOMA

First, the defendants claimed that Ramirez (1) did not have standing to bring his TOMA claim because he was present at the meeting; and (2) did not establish a violation of TOMA because the agenda for the April 14 meeting was posted in compliance with the stature.

Standing

Regarding standing, the Thirteenth Court noted that the issue was not presented to the trial court and was raised for the first time in the defendants’ reply brief. Nonetheless, since standing is a component of subject-matter jurisdiction, the court addressed the issue. The court noted that TOMA confers standing on “interested person[s],” and is intended to benefit all members of the interested public. The Thirteenth Court thus aligned with the majority of courts of appeals, which hold that a person does not need to have a unique injury separate from other members of the public to have standing under TOMA, and must only show that he shares the general public’s interest in ensuring that TOMA is enforced. Thus, Ramirez qualified as an “interested person” and had standing to bring suit under TOMA.

Violation

The court then proceeded to determine whether Ramirez identified a TOMA violation. The parties did not dispute that the original April 14, 2014 notice met the requirements of TOMA; the only disputed issue was whether marking through the notice at city hall with the word “cancelled” was a violation of TOMA. The defendants argued that all other notices—including those inside city hall and posted online—were not marked as “cancelled.” The Thirteenth Court of Appeals held however, that it could not overlook the “cancelled” notice, and that the notice did not inform the general public that a meeting would be held. Moreover, TOMA specifically requires notice to be posted “in the city hall,” so the additional postings could not remedy the “cancelled” notice. Taking as true all evidence in favor of Ramirez then, Ramirez created a genuine issue of material fact regarding a violation of TOMA.

Whistleblower Act

A plaintiff must plead the specific elements of the Whistleblower Act in order to invoke the Act’s waiver of sovereign immunity. Although the elements may be considered jurisdictional facts, the plaintiff’s burden does not involve a significant inquiry into the validity of his claim. The elements are: (1) that the plaintiff was a public employee; (2) that he made a good faith report of a legal violation by another employee or his employing entity; (3) he made the report to the appropriate authority; and (4) he suffered retaliation.

Here, the City disputes whether Ramirez made a good faith report of a legal violation, arguing that (1) Ramirez reported his own violation; and (2) Ramirez did not identify an actual violation of the law. Good faith is determined under both a subjective and objective standard, requiring that the employee believed he was reporting a violation and that the belief was reasonable. Ramirez presented evidence that he was ordered by multiple city officials to waive or discount fees for city services. Ramirez claimed that these actions were in violation of the Texas Constitution’s prohibitions on the use of public funds to give contributions or credits to individuals. The Thirteenth Court of Appeals agreed, and noted that Ramirez’s factual allegations also constituted potential abuses of official capacity in violation of the Texas Penal Code. Thus, taking Ramirez presented a fact issue on his claim under the Texas Whistleblower Act.

Declaratory Judgment

The defendants next argued that Ramirez failed to identify any basis for his declaratory judgment claims. However, the Texas Civil Practice & Remedies Code authorizes interlocutory appeal from an order denying a governmental entity’s plea to the jurisdiction, and the declaratory judgment claims were brought only against the government officials in their individual capacities. The Thirteenth Court of Appeals thus lacked jurisdiction to review the declaratory judgment issue.

Having rejected each of the defendants’ challenges to the interlocutory order, the Thirteenth Court of Appeals affirmed the trial court’s judgment.

Read the Full Opinion Here

Opinion Released November 2, 2017

La Joya Independent School District v. Tanya Gonzalez, No. 13-16-00426-CV (Opinion by Justice Contreras; Panel Members: Justices Rodriguez and Benavides)

In this appeal from the denial of a plea to the jurisdiction, the Thirteenth Court of Appeals analyzed whether the Texas Tort Claims Act waives sovereign immunity when a student dies while attempting to board a bus.

This case involves the death of a 13-year-old attempting to cross an expressway in order to board a school bus. On October 23, 2012, 13-year-old Josue Rogelio Uranga missed his La Joya Independent School District bus at its usual stop on US. Expressway 83. Uranga arrived at the stop after the bus had turned into the crossover lane between the two main lanes. The bus driver, Salvador Rodriguez, Jr., stopped the bus and activated the warning lights, leading Uranga to believe that he could cross the Expressway and board the bus. Uranga was struck and killed by Jaime Venecia’s vehicle as he attempted to cross the road.

Gonzalez, individually and on Uranga’s behalf, filed suit against La Joya ISD and Venecia. Regarding La Joya ISD, Gonzalez claimed that District employee Rodriguez acted negligently in the course and scope of his employment by creating a non-designated stop and proximately causing Uranga’s death.

The District filed a plea to the jurisdiction—attaching no evidence—claiming that it was immune because (1) the death did not arise out of the operation or use of a motor vehicle; and (2) Gonzalez did not provide the statutorily-required notice. Gonzalez responded by arguing that Rodriguez’s driving and stopping the bus and activating the flash warning lights constituted operation of a motor vehicle, and that the district had actual notice of her claim such that no notice was required. Attached to her response, Gonzalez included two police reports—neither attributing fault to Rodriguez—along with the District’s employee handbook which addressed accidents involving vehicles owned by the District.  Gonzalez pointed to the District’s investigation at the scene of the death on the morning of the accident. Gonzalez further emphasized that Rodriguez was suspended without pay and subjected to a drug test, pursuant to District policy requiring such procedures when there is a preponderance of the evidence that a District-owned vehicle contributed to an accident.

The trial court held two hearings on the issue. At one of the hearings on the plea to the jurisdiction, the District introduced a videotape taken from inside Rodriguez’s bus on the day of the incident. Rodriguez could be heard talking to a student passenger in Spanish about Uranga’s death, acknowledging that he might be blamed for the death, and instructing the student about what the tell the police. The video also captured Rodriguez’s phone call to a person who appeared to be his supervisor, acknowledging that Uranga thought the bus was going to wait for him in the crossover when he ran across the street and was killed.

After the hearings, the trial court denied the District’s plea. The District filed an interlocutory appeal.

Held: The trial court properly denied the District’s plea to the jurisdiction because the pleadings sufficiently invoked the Texas Tort Claims Act, and the District did not present evidence to the contrary.

The Thirteenth Court of Appeals began by noting the procedural posture of the District’s plea to the jurisdiction. The court emphasized that a defendant cannot advance a “no-evidence” plea to the jurisdiction and force the plaintiff to raise a fact issue.

The court then turned to the requirements for a waiver of sovereign immunity under the Texas Tort Claims Act (“TTCA”). The TTCA waives sovereign immunity if, among other things, (1) the injury or death proximately arises from the operation or use of a motor vehicle, (2) the death was proximately caused by a negligent act of an employee acting in the scope of his employment, and (3) the governmental entity receives notice of a claim against it not later than six months after the day on which the incident giving rise to the claim occurred. However, notice is not required if the entity has actual notice of the incident, the injury, and subjective awareness of its fault in producing the injury.

The Thirteenth Court of Appeals noted that Gonzalez’s pleadings alleged that the District was subjectively aware of its fault, and the District produced no evidence to the contrary and thus failed to meet its burden to negate the jurisdictional facts pleaded by Gonzalez. Moreover, the jurisdictional evidence presented at the hearings reflected the existence of a fact issue. Although the District’s investigation did not show actual notice, the taped recording from the bus on the day of the incident established that Rodriguez called “Lupe”—a person the context of the call indicated was likely his supervisor—and informed him of his potential fault. Thus, the evidence established that Rodriguez had subjective notice of his fault and there was a fact issue as to whether such notice could be imputed to the District. The trial court did not err by denying the District’s plea to the jurisdiction.

Arising from Operation or Use of a Motor Vehicle

Next, the District argued that Gonzalez’s claim did not involve operation or use of a motor vehicle, as required by the TTCA. The Thirteenth Court noted that Rodriguez was alleged to have contributed to Uranga’s death by temporarily stopping the bus in the crossover and activating the warning lights. The District did not produce evidence to the contrary. The court concluded that temporarily stopping the bus and activating its lights are purposeful acts that constitute operation and use of the bus.

The court then turned to the “arose from” element. The “arose from” requirement requires more than mere involvement of the property, but less than proximate cause. Gonzalez’s alleged claim “arose from” the bus because Uranga was struck and killed while attempting to board the bus. Moreover, Gonzalez alleged that Uranga would not have tried to cross the expressway but for Rodriguez’s decision to stop the bus in an unsafe, undesignated location and activate the bus’s warning lights. These allegations show both cause in fact and foreseeability.

Gonzalez’s pleadings were thus sufficient to support a waiver of sovereign immunity under the TTCA, and the trial court did not err by denying the District’s plea to the jurisdiction.

Read the Full Opinion Here

Opinions Released October 26, 2017

In the Interest of K.M., I.M., & K.M., No. 13-17-00083-CV (Memorandum Opinion by Justice Contreras; Panel Members: Chief Justice Valdez and Justice Hinojosa)

In this appeal, the Thirteenth Court discussed the procedure that applies when a court reporter loses or damages his stenographic notes from the proceedings challenged in the appeal. 

Jesus Mendoza appealed from an Order in Suit for Modification of Support Order and to Confirm Support Arrearage, signed January 6, 2017. The court reporter then filed an affidavit with the court of appeals, stating that the hard drive containing his stenographic notes had been dropped, and he could not provide a full transcript of the proceedings. The court of appeals remanded the case to the trial court for a hearing under Texas Rule of Appellate Procedure 34.6(f). Texas Rule of Appellate Procedure 34.6(f) provides that an appellant is entitled to a new trial if (a) the appellant timely requests a reporter’s record, (b) a significant portion of the court reporter’s notes is lost or destroyed without the appellant’s fault, (c) the lost or destroyed portion is necessary to the appeal, and (d) the lost or destroyed portion cannot be replaced by agreement of the parties or by a copy deemed by the trial court to accurately duplicate the original.

The trial court held a Rule 34.6(f) hearing and made findings on each of the four factors. Regarding the last factor—whether the lost or destroyed portion could be replaced—the court found as follows: “The Court therefore conducted a hearing, and by agreement of the parties to accurately duplicate with reasonable certainty the findings and orders previously rendered in the prior hearing of December, 2016, and order signed January 6, 2017.” The Thirteenth Court of Appeals construed this ambiguous language to mean that the record could not be replaced by agreement of the parties. The court vacated the judgment of the trial court and remanded the case for a new trial.

Held: Mendoza was entitled to a new trial since the reporter’s record of his first trial could not be provided or replaced and was necessary to the appeal. The trial court’s judgment was vacated and the case remanded for a new trial.

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Juan Angel Guerra v. Raul P. Flores, No. 13-15-00533-CV (Memorandum Opinion by Chief Justice Valdez; Panel Members: Justices Contreras and Hinojosa)

In this direct appeal, the Thirteenth Court of Appeals reiterated the need for a complete record when ruling on legal sufficiency challenges.

Raul P. Flores performed engineering services for Juan Angel Guerra, but Guerra failed to provide payment. Flores filed suit, and a bench trial resulted in a $20,000 judgment for Flores. Guerra appealed. Guerra filed a partial reporter’s record reflecting only his own trial testimony.

Held: The Thirteenth Court of Appeals could not review Guerra’s legal sufficiency complaints because he did not submit a complete appellate record. The trial court’s judgment was affirmed.

Guerra first argued that Flores’s claim was barred by the statute of limitations, which the Thirteenth Court construed as a challenge to the legal sufficiency of the evidence to support the trial court’s implied finding that the suit was not barred. The court noted that, to succeed on appeal, Guerra was required to show that the evidence conclusively established that Flores’s claim was barred. This required the court to consider the entire record. However, Guerra provided only a partial reporter’s record. Guerra did not file and serve a request for a partial record. When the record is incomplete, the appellate court must presume that the missing portions support the trial court’s judgment. Guerra’s statute of limitations issue was overruled.

In a footnote, the court noted that Guerra’s other issues were also challenges to the legal sufficiency of the evidence. Again, since Guerra did not submit a complete appellate record, the court could not meaningfully review Guerra’s challenges.

The trial court’s judgment was thus affirmed.

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Opinion Released October 19, 2017

McClendon v. State, No. 13-16-00230-CR (Memorandum Opinion by Justice Longoria; Panel Members: Justices Contreras and Benavides)

In this appeal from a conviction after an acquittal on a related charge, the Thirteenth Court of Appeals emphasized the appellant’s burden to present a complete record.

Andrew McClendon kidnapped the victim at knifepoint and forced her to drive him to a marina in Corpus Christi, where he had sexual contact with her in the backseat of the car. McClendon then forced the victim to drop him off at a Stripes convenience store. McClendon was indicted for four counts of aggravated sexual assault, but a jury acquitted him of all four charges. The State then indicted McClendon for aggravated kidnapping and aggravated assault.

At the beginning of his trial, McClendon filed a motion to limine to limit the evidence admitted regarding the alleged sexual assault. The trial court allowed the State to present evidence of the sexual contact to provide context for the crime, but stated that the State could not retry the sexual assault charge. The State then called a sexual assault nurse examiner to testify about her examination of the victim, and indicated that it intended to read other testimony from the prior sexual assault trial into the record. McClendon objected, claiming the evidence violated the expunction order regarding his sexual assault charge. The trial court overruled McClendon’s objection.

McClendon was convicted of both charges, and the trial court sentenced McClendon to thirty years for each offense, to run concurrently.

McClendon appealed, arguing (1) that his convictions violated the constitutional protection from double jeopardy; and (2) that the court erred by admitting evidence from the initial trial.

Held: McClendon did not introduce the record of his prior trial into evidence before the trial court, nor did he offer a copy of his expunction order. Thus, the record was insufficient to review McClendon’s issues premised on the omitted documents. The trial court’s judgment was affirmed.

Double Jeopardy

McClendon began by arguing that that his conviction violated the double jeopardy clause by (1) imposing multiple punishments for the same offense, and (2) subjecting McClendon to a second prosecution for the same offense after an acquittal. The Thirteenth Court disregarded the first argument in a footnote, stating that a multiple punishments violation could not occur in this case because there was no punishment for the sexual assault charges.

The court thus focused on the alleged successive-prosecution violation. To succeed on a successive-prosecution claim, McClendon was required to show that the two offenses were the same in law and fact.

McClendon did not object on double jeopardy grounds at the trial court level. However, the issue may be raised for the first time on appeal if the double jeopardy violation is apparent from the face of the record, and applying the usual rules of procedural default serves no legitimate state interest. McClendon’s prior case was not part of the appellate record, and thus the Thirteenth Court could not examine the relevant elements of his prior indictment. Although McClendon moved to supplement the appellate record with the reporter’s record from the first trial, the appellate court held that it could not consider the supplemental record. Supplementation is intended for instances where evidence or filings are already part of the trial court record but were not forwarded to the appellate court for some reason. McClendon did not ask the trial court to take judicial notice of his initial trial or otherwise bring it to the court’s attention, so he cannot present it to the court of appeals as a supplemental record. Without more information about the elements and nature of the allegations in the original trial, the court of appeals could not review the double jeopardy issue and no violation was apparent on the face of the record.

Admissibility of Expunged Evidence

McClendon next argued that the trial court reversibly erred by admitting evidence in violation of the order expunging his sexual assault charges. The court of appeals noted that the expunction order was not in the record, and McClendon did not ask the trial court to take judicial notice of the document. Although McClendon attached a copy to his appellate brief, the court of appeals refused to consider the document since it was not in the record. Without the expunction order, the Thirteenth Court of Appeals could not determine whether any evidence was admitted in violation of the order. The appellate record was thus insufficient to allow review, and the issue was overruled.

Having overruled both McClendon’s issues, the trial court’s judgment was affirmed.

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Opinions Released October 5, 2017

Ervin v. State, No. 13-16-00537-CR (Memorandum Opinion by Justice Rodriguez; Panel Member: Justices Contreras; Concurring Memorandum Opinion by Justice Benavides)

In this appeal from a conviction based on a drug raid conducted by a later-suspended drug enforcement investigator, the Thirteenth Court of Appeals enforced the preservation requirements established by the Court of Criminal Appeals in Reyna v. State.

Rodnico Rondae Ervin was tried for possession of a controlled substance with the intent to deliver in a drug-free zone, after the Waco Drug Enforcement Unit (“WDEU”) found methamphetamine, marijuana, cough syrup, a digital scale, and a handgun magazine in the kitchen of his home. Numerous investigators testified at trial, including Chester Long—the lead investigator—and Anita Johnson—the investigator responsible for documenting the evidence, sending it to the lab, and storing it in the department’s property room. However, the member of the WDEU who found the drugs in the kitchen—David Starr—did not testify. When Ervin attempted to question Johnson about Starr’s suspension, the State objected. After a brief discussion of the issue in chambers, the trial court sustained the State’s objection and instructed the jury to disregard the reference to Starr’s suspension.

Ervin later made an offer of proof, recalling several investigators who testified that Starr and another member of the WDEU were removed from active duty after an incident in which they failed to disclose information about a drug investigation to the District Attorney’s Office.

The jury found Ervin guilty and sentenced him to fifty years’ confinement. Ervin appealed, claiming that the trial court’s failure to allow him to present evidence of Starr’s suspension and attack Starr’s credibility violated his rights under the Confrontation Clause.

Held: Ervin did not adequately preserve his evidentiary and Confrontation Clause objections in the manner required by Reyna. Although Reyna may need to be reexamined, it bound the Thirteenth Court to overrule Ervin’s issues on appeal.

The Thirteenth Court began by addressing the State’s argument that Ervin did not preserve his challenges for appeal. The court noted that, to preserve error, a defendant must not only tell the trial court that the evidence is admissible, but why the evidence is admissible. Under Reyna v. State, 168 S.W.3d 173 (Tex. Crim. App. 2005), the complaint raised before the trial court must be the same complaint raised on appeal. When an offer of proof is insufficiently specific, any error in the corresponding ruling is waived.

The court noted that at trial, the State challenged testimony regarding Starr by arguing that the evidence was not relevant. Ervin did not raise the Confrontation Clause issue, but simply responded to the relevance objection. On appeal however, Ervin challenged the exclusion as a violation of the rules of evidence and of Ervin’s rights under the Confrontation Clause. These errors were not preserved. Thus, although the court acknowledged that the “outcome is severe,” it overruled Ervin’s challenges and affirmed the judgment.

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Concurring Memorandum Opinion

In a concurring memorandum opinion, Justice Benavides agreed that the majority’s result was required by binding precedent from the Court of Criminal Appeals, but wrote separately to respectfully question whether the precedent—Reyna v. State—should be re-examined. In Reyna, the Court of Criminal Appeals held that Reyna’s failure to explicitly object on the basis of the Confrontation Clause deprived the trial court of the opportunity to rule on the issue and waived the issue for appeal. However, Justice Benavides noted that Ervin’s counsel argued that the status of the officer who located and collected the evidence was relevant to the jury. This implicitly invoked the Confrontation Clause and raised challenges based on the bias, motive, and interest of the WDEU investigators. Justice Benavides thus urged reconsideration of Reyna, commenting that its heightened standard elevated procedural line-drawing over the defendant’s constitutional rights.

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Columbia Valley Healthcare System, LP v. Pisharodi, No. 13-16-00613-CV (Memorandum Opinion by Chief Justice Valdez; Panel Members: Justices Rodriguez and Hinojosa)

In this appeal from an order denying Columbia Valley Healthcare System’s motion to dismiss, the Thirteenth Court of Appeals analyzed the Texas Citizens Participation Act.

Dr. Madhaven Pisharodi was a neurosurgeon at Columbia Valley Healthcare System, LP, d/b/a Valley Regional Medical Center. The chief of staff at Valley Regional asked Dr. Pisharodi to file a complaint regarding a fellow doctor—Dr. Gaitan. Dr. Pisharodi did so, but Valley Regional failed to investigate the complaint, and instead “started a campaign” to discredit Dr. Pisharodi not only in Cameron County but also before the Texas Medical Board and National Databank. Specifically, Valley Regional initiated a series of peer reviews of Dr. Pisharodi, terminated his access to patients’ medical records, then altered the patients records to justify suspending Dr. Pisharodi. Valley Regional then reported Dr. Pisharodi to the Texas Medical Board based on the altered records.

Dr. Pisharodi sued Valley Regional for breach of the bylaws and sued Dr. Gaitan and Valley Regional for negligence, business disparagement, defamation, and conspiracy. Valley Regional and Dr. Gaitan moved to dismiss under the Texas Citizens Participation Act (“TCPA”). The trial court dismissed the business disparagement, defamation, and conspiracy claims, but denied the motion as to the breach of contract and negligence claims. Valley Regional and Dr. Gaitan appealed.

Held: Valley Medical established that the TCPA was applicable by a preponderance of the evidence, but Dr. Pisharodi did not carry his burden to provide clear and specific evidence of his claims. The trial court’s order was reversed and the cause remanded with instructions to enter an order of dismissal.

The TCPA requires a court to dismiss claims that are based on, related to, or in response to the defendant’s exercise of the right to free speech, right to petition, or right of association. A claim implicates the right to free speech under the TCPA if it is a communication made in connection with a matter of public concern. The TCPA defines “public concern” to include issues relating to health or safety and to service in the marketplace.

A movant seeking dismissal under TCPA bears the initial burden to show by a preponderance of the evidence that the plaintiff’s action is based on, related to, or in response to one of the relevant protected rights. The burden then shifts to the plaintiff to offer clear and specific evidence to show a prima facie case for each essential element of the claim. The court of appeals conducts a de novo review of the trial court’s ruling on a motion to dismiss based on the pleadings and attached affidavits.

First, the Thirteenth Court examined whether Dr. Pisharodi’s claims for breach of contract and negligence were based on, related to, or in response to Valley Medical’s exercise of its protected rights. Dr. Pisharodi argued that his action simply related to Valley Medical’s failure to comply with the bylaws in conducting a sham peer review of his actions and falsely reporting him to the Texas Medical Board and National Database. Valley Medical responded that the statements it made during the peer review process and to the Texas Medical Board and National Database were protected free speech because Dr. Pisharodi’s practice is a matter of public concern. The Thirteenth Court agreed with Valley Medical, finding that Dr. Pisharodi’s ability to practice medicine related to health and safety, and was a matter of public concern. Similarly, Dr. Pisharodi’s negligence claim was based on Valley Medical’s alleged false statements regarding his ability to practice medicine. Valley Medical thus met its burden to show by a preponderance of the evidence that the actions were based on, related to, or in response to the exercise of the right to free speech.

The burden then shifted to Dr. Pisharodi to offer clear and specific evidence of his claims. Yet, Dr. Pisharodi did not address this step of the analysis, instead insisting that the TCPA did not apply. Although Dr. Pisharodi claimed that he had a contractual relationship with Valley Medical governed by the bylaws, bylaws are not always binding on a hospital, and Dr. Pisharodi failed to provide a copy of the bylaws. Similarly, Dr. Pisharodi offered no evidence of negligence.

Consequently, Dr. Pisharodi’s breach of contract and negligence claims must be dismissed under the TCPA. The trial court’s order was reversed as to these two claims, and the case was remanded for further proceedings with instructions to enter an order of dismissal. 

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Opinion Released September 28, 2017

Cantu v. Medina, No. 13-16-00566-CV (Memorandum Opinion by Justice Contreras; Panel Members: Justices Rodriguez and Benavides)

In this appeal from a forcible detainer action, the Thirteenth Court of Appeals examined the standing and capacity requirements applicable to an eviction case in which the owner of the underlying real property has died.  

Eddie and Elizabeth Medina filed a forcible detainer action again Juan Carlos Cantu on May 10, 2016, seeking to evict Cantu for failing to pay rent. Cantu responded that the Medinas did not have standing because Elizabeth Medina’s mother Julia Sosa—who died on April 12, 2016—was the true owner of the property.  The justice court held a bench trial, and awarded possession and damages to the Medinas. Cantu appealed to the county court at law.

Meanwhile, Sosa’s will was admitted to probate, leaving the entire estate to the Medinas and designating Elizabeth Medina as executor.

The county court at law then held a trial de novo on the forcible detainer action, and again awarded possession of the property to the Medinas. Cantu was ordered to vacate the premises by October 26, 2016.

Cantu appealed, and later filed a petition for mandamus relief with the Thirteenth Court of Appeals. Cantu also filed a motion for supersedeas bond, but did not secure a ruling on the motion. Consequently, on October 28, 2016, the Hidalgo County Clerk issued a writ of possession ordering Cantu’s removal from the property. Cantu moved for a temporary restraining order and re-urged his motion to set a supersedeas bond. The county court granted the TRO and set the bond amount, which Cantu paid.

On appeal, Cantu argued that (1) the Medinas did not have standing or capacity to sue; (2) the county court abused its jurisdiction by allowing Elizabeth Medina to participate in the case as executrix as if the court had original jurisdiction; and (3) the county clerk erred by issuing a writ of possession. The Medinas did not file a response brief with the court of appeals.

Held: The Medinas lacked standing and capacity to file a forcible detainer action when they sued in justice court. The judgment was reversed and rendered that the Medinas take nothing.

The Thirteenth Court of Appeals only addressed Cantu’s first issue regarding standing and capacity, as it was dispositive of the appeal. The court reiterated that a plaintiff must have both standing and capacity to sue. Standing focuses on the person’s relationship to the suit as a personally aggrieved party, whereas capacity relates to the person’s legal authority to bring suit. Only a qualified and appointed representative may file suit on behalf of an estate. When the Medinas filed suit, it was undisputed that the property at issue belonged to Sosa’s estate, and Elizabeth Medina had not yet been appointed as executrix. Although the Medinas were heirs named in Sosa’s will, generally an heir cannot sue to recover real property on behalf of the estate.

Consequently, at the time the Medinas filed suit, they had no ownership interest in the property and no authority to act on the estate’s behalf. They thus lacked standing to sue themselves, and lacked capacity to sue on behalf of the estate. Although Elizabeth Medina was later named representative of the estate and thus obtained capacity to sue on the estate’s behalf, this did not occur until after the justice court rendered final judgment. The justice court had exclusive original jurisdiction over the suit. Consequently, the justice court’s judgment was erroneous.

The judgment was reversed and rendered that the Medinas take nothing.

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Opinions Released September 14, 2017

Rojas v. Citimortgage, Inc., No. 13-16-00257-CV (Opinion by Justice Rodriguez; Panel Members: Justices Contreras and Benavides)

In this appeal from an order of foreclosure, the Thirteenth Court of Appeals analyzed the effect of a minor delay in service of citation when such delay caused the defendants to be served after the statute of limitations had expired.

Miguel and Lourdes Rojas obtained a home-equity loan in 1999, and the loan was later assigned to Citimortgage, Inc.  Citi sent the Rojases a series of default notices. First, on January 16, 2009, Citi sent a notice of default and threatened acceleration and foreclosure. Citi then accelerated the loan and notified the Rojases on July 21, 2010, May 16, 2011, and August 16, 2011 that the full $188,000 amount was due. The Rojases made no payments.

Then, on November 6, 2013, Citi again sent the Rojases a notice of default, but this time demanded payment of the past due balance of $96,000 and threatened acceleration if the amount was not paid by December 11, 2013.

Finally, on June 23, 2014, Citi filed suit for judicial foreclosure. Thirty-six days later, the petition was served on the Rojases. Citi moved for summary judgment, but the Rojases responded that Citi’s suit was time-barred. The trial court granted summary judgment for Citi, and the Rojases appealed.

Held: The Rojases raised a fact issue precluding summary judgment by showing that the delay in service of process resulted in service beyond the statute of limitations, and Citi did not offer evidence to demonstrate diligence of justify the delay. Summary judgment was thus improper; the judgment was reversed and remanded.

Appeal

First, the Thirteenth Court addressed Citi’s argument that the Rojases’ appeal was untimely. The court noted that, under Texas Rule of Appellate Procedure 26.1, a party must appeal within thirty days of the judgment or within ninety days if a motion for new trial or motion to modify the judgment is filed. Here, the judgment was entered on February 19, 2019, and the Rojases subsequently filed a motion to reconsider before appealing on May 2, 2016. The motion to reconsider was effectively a motion for new trial, extending the appellate timetable to require appeal within ninety days of the judgment. However, the Rojases’ appeal was outside the ninety-day timeframe. Nonetheless, it was within the fifteen-day grace period following the ninety-day deadline; thus, the Rojases’ appeal would have been timely had they filed a motion for an extension of time. Such a motion for an extension is implied—and the corresponding appeal allowed—if the appellant offers a reasonable explanation for its failure to file a timely notice of appeal. The Rojases explained that they filed an untimely notice because their trial counsel withdrew after the summary judgment, and they were representing themselves at the time of appeal. This explanation was reasonable enough to imply a motion for an extension, thus making the Rojases’ appeal timely.

Statute of Limitations

The Rojases argued that summary judgment for Citi was inappropriate because they raised a genuine issue of material fact regarding the statute of limitations. The parties disputed the date Citi’s foreclosure action accrued.

The Rojases argued that Citi’s acceleration of the debt on July 21, 2010 triggered the accrual of the four-year statute of limitations, which then expired on July 21, 2014. Citi however, argued that it abandoned its acceleration of the debt when it sent a notice of default on November 6, 2013, thus stopping the accrual of the statute of limitations. The Thirteenth Court of Appeals noted that there was conflicting case law on this issue, but nonetheless held that Citi did not submit its abandonment theory to the trial court. Thus, the only potential date of accrual presented to the trial court was July 21, 2010.

Reasonable Diligence

The Rojases further argued that Citi did not carry its burden to show that its service was timely and diligent. The Rojases argued that the evidence conclusively showed the statute of limitations had expired at the time of service, and Citi did not raise a fact issue as to the company’s diligence.   

A timely filed suit tolls the statute of limitations only if the defendant is diligently served. A plaintiff is diligent if he acts as an ordinarily prudent person would have acted under the same or similar circumstances. The plaintiff must prove timely, diligent service and explain any lapse or delay.

The Thirteenth Court first noted that the Rojases’ evidence showed untimely service, and the burden was thus on Citi to prove diligence. The record revealed that, while the Rojases were served only eight days after limitations had expired, the service was 36 days after Citi filed suit. Yet, Citi argued that this 36-day delay was negligible and showed diligence as a matter of law. While the Thirteenth Court acknowledged that a 36-day delay is minor, it held that even a minor delay must be explained when the service occurs after the statute of limitations has expired; the minor delay is not diligent as a matter of law. Yet, Citi submitted no evidence of its diligence or justification for the delay. Consequently, Citi did not meet its burden to show diligence as a matter of law, and summary judgment was improper.

The summary judgment was reversed and the case remanded.

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Burton v. State, No. 13-16-00662-CR (Memorandum Opinion by Justice Rodriguez; Panel Members: Justices Contreras and Benavides)

In this appeal from a conviction, the Thirteenth Court of Appeals discussed the requirements for preserving error in various contexts.

Jerry Wayne Burton was convicted of aggravated sexual assault of a child younger than fourteen years of age, with one prior conviction for aggravated sexual assault of a child. The court sentenced Burton to life in TDCJ. Burton appealed, claiming that the trial court erred by (1) denying his motion for continuance; (2) conducting a competency evaluation of the complainant in front of the jury; and (3) commenting on the weight of the evidence.

Held: Burton failed to adequately preserve his challenges, or provided no authority for his arguments. The conviction was affirmed.

Motion for Continuance

Burton first claimed that the trial court erred by refusing to grant him a continuance on the first day of jury selection, when Burton requested time to investigate potential Brady material given to him just days before the trial. However, a motion for continuance in a criminal action must be in writing and sworn to by a person with knowledge of the facts stated therein, among other requirements. Burton’s motion for continuance was made orally. Thus, Burton did not preserve the error for review.

Competency Evaluation

Next, Burton argued that the trial court erred by evaluating the four-year-old complaining child’s competency in the presence of the jury. Burton claimed the presence of the jury created political pressure for the judge to find the child competent, as well as pressure on the child to “perform.” Burton raised a similar objection at the time the competency evaluation was performed during trial, but the court overruled his objection.

The Thirteenth Court noted that competency is a question for the trial court, and there is no requirement in the rules of evidence requiring the evaluation to be conducted outside the presence of the jury. Moreover, Burton provided no citation or authority for his argument. Thus, the trial court had the discretion to evaluate the child’s competency in the presence of the jury.

Comment on the Weight of the Evidence

Finally, Burton claimed that the trial court erroneously commented on the weight of the evidence during its preliminary competency evaluation of the child. Specifically, the court commented that the child was “smart” when the court asked the child about her age and about Minnie Mouse and Dora the Explorer. The court then proceeded to ask if anyone had done anything to hurt the child, and if the perpetrator was the defendant. However, Burton did not object to these questions during trial.

Generally, a challenge to a trial court’s comments on the weight of the evidence must be preserved unless the comments constitute fundamental error. Here, the Thirteenth Court held that the judge’s comments that the child was “smart” were not improper. The court noted that these comments were within the context of making the child feel comfortable in the courtroom. Moreover, the word “smart” did not indicate the court’s view of Burton’s guilt or innocence, and thus could not operate to vitiate the impartiality of the jury, as is required for a finding of fundamental error. Similarly, the court’s questions regarding the events underlying the charge were framed to determine the child’s capacity to recollect events, to narrate events, to identify the individuals involved, and to understand questions, as well as the child’s understanding of the need to tell the truth. Moreover, even if the questions were erroneous they would not rise to the level of fundamental error. Thus, the challenged comments were not erroneous, but even if they were such error was waived.

Having rejected each of Burton’s challenges to the judgment, the Thirteenth Court of Appeals affirmed his conviction.

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Opinion Released September 7, 2017

The Thirteenth Court released only one opinion the week of September 7, 2017.

In the Interest of C.G.B., No. 13-17-00154-CV (Memorandum Opinion by Justice Benavides; Panel Members: Justices Contreras and Rodriguez)

In this accelerated appeal from a termination order, the Thirteenth Court of Appeals discussed a trial court’s ability to terminate a mother’s rights to her daughter based on past conduct, even if the parent no longer engages in such conduct.

Background

C.G.B. (“Child”) was born on July 14, 2005 to L.M.C. (“Mother”) and T.B. (“Father”). Mother and Father divorced in 2009 and were named joint managing conservators with Mother having the right to designate Child’s residence. In May 2010, M.L.B. (“Paternal Grandmother”) filed a petition to be appointed Child’s managing conservator, alleging that Mother was involuntarily committed to a mental health facility in April 2010. Father agreed to the modification. The court then appointed Mother and Paternal Grandmother as temporary joint managing conservators, giving Paternal Grandmother the right to designate Child’s residence. Mother was permitted to have supervised visitation, but was required to pay child support and seek psychological help.

One month later, Paternal Grandmother filed a modify to modify the prior orders based on Mother’s failure to update her contact information and violation of the restrictions regarding Mother’s presence within a certain distance from Child’s school or Paternal Grandmother’s business. The trial court entered an order ending Mother’s visitation and ordered Mother not to text or call Paternal Grandmother or Father. The order was subsequently amended, and Mother began visiting Child again.

In August 2011, the orders were again amended to name Father as joint managing conservator with primary care of Child, while Mother was temporary joint managing conservator with visitation supervised by Father’s wife (“Wife”).

In January 2012, Father filed a motion to modify based on an alleged altercation between Father, Mother, and Wife. Paternal Grandmother intervened again, and the trial court appointed Father, Mother, and Paternal Grandmother as joint managing conservators. Again, Mother was required to pay child support and comply with her mental health doctor’s recommendations, and was allowed supervised visitation with a counselor named Adams for $120/hour.

After Mother struggled to pay for visitation, she moved to modify in 2013. Father and Paternal Grandmother were appointed joint managing conservators while Mother was a possessory conservator. The parties agreed to a new, less expensive supervisor—Frost—for Mother’s visitations and Mother and Father split the cost.

In 2014, Father and Paternal Grandmother moved to enforce the child support order. A judgment for the arrears was granted. Meanwhile, Mother also moved to modify the orders in 2014, but nonsuited her motion in November when she hired new counsel. In 2015, Mother renewed her motion to modify the orders.

Finally, in 2016, Father and Paternal Grandmother filed a petition to terminate Mother’s parental rights, alleging that Mother (1) left Child with a non-parent with no intent to return; (2) endangered the well-being of Child; and (3) constructively abandoned Child. The court held a bench trial on the petition.

Trial

At trial, Mother first called Paternal Grandmother. Paternal Grandmother testified that she did not want Child to have a relationship with Mother; that Mother had been given too many chances in the past; and that Wife was Child’s mom. However, Paternal Grandmother admitted that she had not spoken with Mother since December 2013, and that Father—who Paternal Grandmother characterized as a wonderful parent—had also had drug, alcohol, and crime problems in the past. Father then testified to similar facts. Father admitted his criminal history but insisted that he had changed and was now working in management in Paternal Grandmother’s business. However, Father admitted that he relapsed while Child was living with him in 2012.

Mother’s sister Beth testified next, stating that Mother had changed since 2010 and is a wonderful parent to Child’s half-brother. However, Beth admitted that Mother caused a confrontation between them while on drugs in 2013. Mother’s cousin Claire then testified that the family had been close since Maternal Grandfather was in a bad car accident, and Mother’s cousin Mia stated that Mother was a great mom to Child’s half-brother. Maternal Grandmother also testified that she was close with Mother and helped babysit Child’s half-brother. Maternal Grandmother stated that Mother is a wonderful parent and that the whole family misses Child very much.

Finally, Mother took the stand and stated that she was employed doing data entry, was current with her child support payments, and no longer used drugs. Mother discussed the various problems that hindered her visitations with Child in the past—including the cost of visitation with Adams, Paternal Grandmother’s intimidating presence at the sessions, and Frost’s objectionable behavior—that led Mother not to attend. In particular, Frost appeared to be sleeping at some visitations and spoke disrespectfully to Mother in front of Child. Mother stopped attending visitations due to this behavior, and filed complaints with the state licensing agency.

Apart from the visitations, Mother believed that she could not contact Child due to the court’s prior orders. Mother further explained that she was seeing a psychiatrist and taking anxiety medication, and there was no longer a need for Paternal Grandmother to serve as conservator. On cross-examination, Mother admitted her disturbing behavior in 2010 and explained that she had a breakdown. However, Mother emphasized that she subsequently attended Alcoholics Anonymous meetings and therapy regularly to address her problems. Furthermore, Mother’s only recent criminal conviction was for obstruction of a highway. While she admitted having a recent confrontation with a former friend in which the police were called, Mother explained that the friend was recently released from prison and Mother was attempting to help, but Mother evicted the friend after the confrontation.

Father and Paternal Grandmother next presented evidence, calling Frost to testify. Frost contested Mother’s characterization of her behavior during supervised visits. Frost also discussed her ongoing counseling of Child regarding Child’s feelings of abandonment by Mother. Frost stated that Child did not want Mother back in her life because she has a fear of being left, and warned that allowing Mother to come and go would be detrimental to Child’s well-being. On cross-examination, Frost admitted that she was angered by Mother’s decision to file a complaint against her with the state licensing board, and that she took it personally. Frost also acknowledged that Paternal Grandmother prepared an email to aid Frost’s testimony at the hearing, although this acknowledgment came after Frost denied speaking with Paternal Grandmother, further undermining Frost’s credibility.

The trial court held that Mother endangered Child’s well-being and that termination was in Child’s best interests. Mother appealed, arguing that (1) the evidence was factually and legally insufficient to support termination; (2) her counsel was ineffective; and (3) the relief granted exceeded the relief requested. The Thirteenth Court of Appeals only addressed Mother’s sufficiency argument, as it was dispositive of the appeal.

Held: There was insufficient evidence to support the trial court’s finding that termination was in Child’s best interest. The termination order was reversed and the cause remanded.

In a sufficiency challenge to an order of termination, the court of appeals analyzes whether the record as a whole allows a factfinder to reasonably form a firm belief or conviction about the truth of the allegations.

A trial court may terminate a parent’s parental rights if (1) the petitioner establishes at least one of the statutory grounds listed in Section 161.001, and (2) it is in the child’s best interests. These elements must be shown by clear and convincing evidence. The trial court relied on subsection (b)(1)(E) of 161.001, holding that Mother endangered the Child’s physical or emotional well-being. Endangerment involves not merely a threat, but exposing the child to loss or injury or jeopardizing the child’s well-being. Moreover, termination under this subsection cannot be based on a single act but must be supported by a deliberate course of conduct.

The court of appeals noted that the majority of Mother’s bad acts discussed at trial happened years earlier. However, Mother had not visited Child since 2013, and the Child stated in a letter that she felt betrayed. A factfinder could reasonably infer that this absence endangered Child’s well-being. Thus the evidence was legally and factually sufficient to support endangerment under Section 161.001(b)(1)(E).

The Thirteenth Court next analyzed whether there was clear and convincing evidence that termination was in Child’s best interest. The Court examined the Holley factors: “(1) the desires of the child, (2) the emotional and physical needs of the child now and in the future, (3) the emotional and physical danger to the child now and in the future, (4) the parental abilities of the individuals seeking custody, (5) the programs available to assist these individuals to promote the best interest of the child, (6) the plans for the child by these individuals or by the agency seeking custody, (7) the stability of the home or proposed placement, (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one, and (9) any excuse for the acts or omissions of the parent.”

The court began by discussing Child’s desires. Child was eleven years old at the time of the trial and spoke with the trial court regarding Mother, but the conversation was not captured in the appellate record. The Thirteenth Court thus presumed that the interview in chambers supported the trial court’s judgment, and held that the factor supported termination.

Next, the court turned to Child’s emotional and physical needs and corresponding dangers presented by Mother. The testimony showed that Mother had issues in the past that harmed Child’s best interest, but such issues were at least three years prior to the termination. Moreover, Father also had a history of poor behavior. Although Mother did not visit Child for multiple years, her visitations were often disrupted by the circumstances or price of the sessions, and Mother sought to modify the trial court’s order to remedy these issues. Notably, Mother paid $70 per hour to see Child with Frost for more than thirty-seven sessions, despite her financial difficulties. While Child felt abandoned, it was not due toMother’s lack of effort. Moreover, the trial court should consider Mother’s reformed behavior in recent years. This factor thus weighed against termination.

The court next examined the current and future placement of Child. The evidence established that Father and Wife currently provided Child with a good home. However, Mother sought increased visitation as an alternative to joint managing conservatorship, thus giving the trial court an option short of termination to protect Child’s current environment. Furthermore, Mother’s evidence showed that she is now rehabilitated, employed, and able to offer Child a stable environment.

Finally, the Thirteenth Court reviewed mother’s prior acts or omissions and excuses for such acts. These were the primary grounds for termination. Yet, since the birth of Child’s half-sibling, Mother had made radical changes and was now stable and surrounded by family support. Furthermore, Father had a history of criminal conduct as well.

The Thirteenth Court thus held that the evidence was insufficient to show that termination was in Child’s best interest, and reversed the termination order. The court commented that Mother should be entitled to rehabilitate her relationship with Child, characterizing termination as a “death penalty” option that was not supported by the evidence. The case was remanded for a new trial.

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