Opinion Library

Evidence

City of Houston v. Sancelia Fonteneaux

COA14

A plaintiff sued the City of Houston (and METRO) for negligence after a bus door allegedly closed on her arm while she was boarding. The City sought dismissal under Texas Rule of Civil Procedure 91a, arguing the pleadings showed no Texas Tort Claims Act (TTCA) motor‑vehicle waiver because the bus was operated by METRO, a separate entity, not a City employee. The Fourteenth Court of Appeals applied Rule 91a’s pleading-only framework—accepting the petition’s facts as true, liberally construing them, and drawing reasonable inferences—and held the live petition plausibly alleged the TTCA motor‑vehicle waiver in Tex. Civ. Prac. & Rem. Code § 101.021(1) by alleging the injury arose from the operation/use of a motor vehicle and, alternatively, that the bus was owned/operated/maintained and/or driven by the City (or METRO), permitting an inference at the pleading stage that a City employee acting within scope could have operated the bus. The court also refused the City’s request to render judgment based on its pending traditional summary-judgment motion because the trial court had not ruled and Rule 91a does not allow evidence-based, “backdoor summary judgment” review. The denial of the Rule 91a motion was affirmed.

Litigation Takeaway

"Rule 91a is not a shortcut to win an immunity or “wrong entity” fight on disputed facts. If the petition pleads a concrete motor-vehicle injury mechanism and plausibly ties operation of the vehicle to a governmental unit—even in the alternative—the case will usually survive early dismissal and move into discovery; defendants should use evidence-based tools (plea to the jurisdiction/summary judgment) rather than a pleading-only Rule 91a attack."

Family Violence & Protective Orders

Strong v. State

COA02

In Strong v. State, a murder defendant sought a jury-charge instruction giving him the statutory presumption that his use of deadly force in self-defense was reasonable. The trial court refused because the presumption under Texas Penal Code §§ 9.31 and 9.32 is unavailable when the actor is “engaged in criminal activity” at the time of the force. On appeal, the Second Court of Appeals held the record conclusively showed Strong was engaged in criminal activity—unlawful possession of a firearm by a felon under Penal Code § 46.04—because he admitted he was a felon, knew he could not possess firearms, and used a firearm during the incident. Strong attempted to avoid the “criminal activity” bar by arguing § 46.04 was unconstitutional as applied to him under the Second Amendment, which (he claimed) would mean his possession was not “criminal activity” and the presumption instruction was required. The court rejected using an as-applied Second Amendment attack as a vehicle to obtain the presumption instruction on these facts and affirmed. Holding: the trial court did not err in denying the presumption-of-reasonableness instruction because Strong’s felon-in-possession status was contemporaneous criminal activity, and his as-applied constitutional challenge did not entitle him to the statutory presumption in the charge.

Litigation Takeaway

"When firearms are involved, a party’s prohibited-possessor status can strip away “presumptive reasonableness” / stand-your-ground framing. If the person with the gun was committing a firearms-possession offense at the time, Texas courts can treat that as contemporaneous “criminal activity” that defeats favorable self-defense presumptions—even if the party tries to reframe the issue with a constitutional challenge. In family cases, that supports protective orders, firearm surrender provisions, and best-interest arguments focused on ongoing illegality and risk."

In the Matter of J.D.

COA14

J.D., a determinate-sentence juvenile adjudicated for capital murder and aggravated robbery, challenged the juvenile court’s decision under Texas Family Code § 54.11 to transfer him from the Texas Juvenile Justice Department to the Texas Department of Criminal Justice’s Institutional Division rather than release him on parole near age nineteen. Although J.D. presented evidence of educational progress, good institutional behavior, treatment participation, remorse, and reentry plans, the record also showed the extreme seriousness and pattern of the offenses, incomplete serious-violent-offender treatment, continuing safety concerns, testimony from the murder victim’s family, and transfer recommendations from TJJD and the prosecutor. Applying abuse-of-discretion review, the Fourteenth Court of Appeals explained that § 54.11(k)’s factors are permissive, the juvenile court need not address or give equal weight to every factor, and conflicting evidence concerning rehabilitation and risk is for the juvenile court to weigh. Because some evidence supported the safety-driven transfer decision, the appellate court affirmed.

Litigation Takeaway

"In a discretionary, factor-based proceeding, evidence of rehabilitation does not compel the requested outcome when the record also supports serious safety concerns. Trial counsel should connect each item of evidence to the governing statutory factors and develop concrete evidence of either continuing risk or real-world risk reduction. On appeal, an argument that the judge should have weighed conflicting evidence differently will rarely establish abuse of discretion; the stronger challenge identifies a legal error, a procedural defect, or the complete absence of evidence supporting a necessary determination."

Corey Morrell v. Burton Baker, Individually and in his Professional Capacity; Lummus, Hallman, Pritchard & Baker, P.C.; and Mercer Transportation Co., Inc.

COA02

In a multi‑defendant, multi‑claim lawsuit, the trial court granted a combined Rule 91a and TCPA motion, dismissing several causes of action “with prejudice,” but the same order stated that the plaintiff’s “only remaining claims” were certain numbered counts in a referenced “Third Amended Petition.” The record did not contain that pleading, and the plaintiff pointed out the order’s internal inconsistency (dismissed claim titles versus allegedly surviving numbered counts). The trial court denied a motion to clarify and later signed a separate order awarding attorney’s fees under Rule 91a.7 and TCPA § 27.009(a)(1), including a Mother Hubbard clause and enforcement language, and it restricted discovery as to one defendant until fees were paid. The Fort Worth Court of Appeals analyzed finality under Lehmann/Elizondo by looking first to the face of the orders and then the record. Because the dismissal order itself indicated claims remained pending and was ambiguous/internally inconsistent about what survived, and because the fee order contemplated ongoing litigation and did not supply unmistakable finality language, the court held there was no final judgment disposing of all claims and parties. With no applicable statute authorizing an interlocutory appeal in this posture, the court dismissed the appeal for want of jurisdiction.

Litigation Takeaway

"A Rule 91a/TCPA win plus a fee award is not automatically appealable. Before noticing appeal, confirm the order unmistakably disposes of all claims and all parties (or obtain a severance). Do not rely on a Mother Hubbard clause or enforcement language to create finality—any “remaining claims” language, references to the wrong live pleading, or other internal inconsistencies can trigger a jurisdictional dismissal and waste months while the trial court case keeps moving."

Termination of Parental Rights

In the Interest of I.S., a Child

COA10

In a termination of parental rights case, Mother timely requested a de novo hearing under Texas Family Code § 201.015 after an associate judge’s bench trial and proposed termination ruling. The referring district court began—but did not complete—the de novo hearing, then prematurely signed an order adopting the associate judge’s termination order (incorrectly reciting that no de novo demand had been made). Mother filed an accelerated notice of appeal the same day. The Tenth Court of Appeals held that, although procedurally erroneous, the adoption order was a final, appealable (voidable) judgment that triggered accelerated appellate deadlines and the running of the trial court’s plenary power. Because plenary power expired and appellate jurisdiction attached, the trial court lacked authority to later complete the de novo hearing or sign subsequent adoption/affirmance orders; those later actions were legal nullities and could not cure the § 201.015 violation. The court reversed the termination judgment and remanded for a proper de novo hearing.

Litigation Takeaway

"If a party timely requests a de novo hearing from an associate judge’s ruling, a referring court cannot sign an adoption order before completing the de novo hearing—and if it does, treat that adoption order as a final, deadline-triggering judgment immediately. File the accelerated appeal and/or plenary-power motions right away; do not assume the trial court can “fix it later,” because post-judgment de novo proceedings may be nullities once plenary power expires or an appeal is pending."

Westcott Law Group PLLC v. Paychex, Inc.

COA14

Paychex obtained a judgment titled “Final Default Judgment” against Westcott Law Group after Westcott missed its answer deadline. But Westcott had transmitted an answer and counterpetition over the weekend, which—under Tex. R. Civ. P. 21(f)(5)—was deemed filed at midnight on the next business day, making Westcott’s counterclaims (conversion, fraud, and DTPA violations) on file when the trial court signed the default judgment that Monday. On restricted appeal, the Fourteenth Court of Appeals first addressed jurisdiction and applied Texas finality law for non-conventional dispositions (including defaults): a judgment is final only if it actually disposes of all claims and parties or states with unmistakable clarity that it does so. Although the order was labeled “Final Default Judgment” and contained standard execution/enforcement language, it did not mention or dispose of Westcott’s counterclaims and did not include unequivocal all-claims/all-parties finality language. The court therefore held the judgment was interlocutory; and because Texas statutes authorize restricted appeals only from final judgments, no interlocutory restricted appeal was available. The court dismissed the restricted appeal for lack of appellate jurisdiction, leaving the counterclaims (and the case) pending in the trial court.

Litigation Takeaway

"Do not rely on a “final” caption. Before appealing—or enforcing—confirm the order either expressly disposes of every pleaded claim (including counterclaims, attorney’s fees, sanctions, reimbursement, and declaratory relief) or contains unmistakably clear all-claims/all-parties finality language. If anything remains pending, the “judgment” may be interlocutory, appellate deadlines may not run, and any attempted (restricted) appeal can be dismissed for want of jurisdiction."

Evidence

Holloway v. State

COA02

In an indecency-by-exposure prosecution, the defendant objected under Texas Rule of Evidence 403 to the State’s use of “context” evidence surrounding the charged incident: a non-graphic photo of the child complainant and testimony about closely timed, related encounters (an earlier exposure-like incident involving the child’s mother, a later door-checking/Ring-video incident at her home, and another school-area exposure-type event). The Fort Worth Court of Appeals applied Rule 403’s pro-admission presumption and the Gigliobianco balancing factors, emphasizing that evidence is not excluded merely because it is harmful; exclusion requires that unfair prejudice substantially outweigh probative value. Because the defense made intent (intent to arouse or gratify) a contested issue, the surrounding-incident evidence had heightened probative force to show sexual intent and to provide a coherent narrative explaining recognition and the complainant’s mother’s reactions. The court also noted safeguards reducing 403 risk, including limiting instructions and the absence of undue delay or cumulativeness. It held the trial court acted within the zone of reasonable disagreement in admitting both the contextual testimony and the child’s photograph and affirmed the conviction.

Litigation Takeaway

"Rule 403 is a “substantial imbalance” rule, not a “keep it nice” rule: when intent, danger, or credibility is disputed, closely connected prior/other incidents and contextual photos can come in to “connect the dots,” especially if you (1) tie the evidence to a specific contested issue (intent/absence of mistake/fear), (2) show tight temporal and factual proximity, (3) keep the presentation non-cumulative, and (4) request/offer limiting instructions. Conversely, if you argue accident/mistake/innocent intent, expect the court to allow more context evidence and preserve your position with targeted objections and Rule 105 limits."

Property Division

Claudia Lucius Williams Smith v. Kenneth Wayne Allen

COA14

In this heirship dispute, the court addressed whether a Harris County home purchased in 1972 was separate or community property. The resolution turned on whether the decedent, Lossie Mae Smith, was informally married to Tom Willie Smith at the time of purchase. The trial court found no informal marriage existed in 1972, pointing to a deed identifying Lossie as a single woman ("feme sole") and testimony from siblings that Tom was not in her life at that time. The Fourteenth Court of Appeals affirmed, emphasizing that because a key letter supporting the marriage claim was never formally admitted into evidence—only placed in the court file—it lacked probative weight. The court held the evidence was legally and factually sufficient to support the separate-property characterization.

Litigation Takeaway

"Evidence that is merely 'in the court file' is not the same as evidence admitted at trial. To prove an informal marriage or challenge property characterization, you must formally admit your documents into evidence and preserve all procedural objections—such as concerns about legal representation or notice—at the trial level, or you risk losing your right to appeal those issues."

Evidence

Carlos Franco Hernandez a/k/a Carlos Alberto Hernandez Orta v. The State of Texas

COA02

In a criminal appeal arising from sexual assault allegations involving a 13-year-old, the Fort Worth Court of Appeals addressed two trial objections that commonly surface in family-law crossover cases: (1) whether the jury charge improperly included a Penal Code § 8.04(a) voluntary-intoxication instruction when the defendant did not affirmatively plead intoxication as a defense, and (2) whether admitting the Sexual Assault Nurse Examiner (SANE) nurse’s written report was reversible error as improper “bolstering.” The court held the intoxication instruction was proper because the record contained evidence of drinking from multiple sources (including the defendant’s admissions and the history reflected in the SANE documentation), and Texas law allows the instruction whenever evidence could lead jurors to think intoxication excuses conduct; the instruction tracked the statute and did not comment on the weight of the evidence. The court also held the SANE report was not excludable or reversible on a “bolstering” theory; bolstering is not a free-standing basis to exclude otherwise admissible evidence, and the argument largely collapses into hearsay/predicate issues that were not the focus of the appellate complaint. The convictions were affirmed.

Litigation Takeaway

"When dealing with SANE/medical records and repeated narratives in SAPCR or protective-order trials, “bolstering” is usually the wrong objection—and often an easy one to defeat if the exhibit is independently admissible. The real battleground is foundation, purpose, and embedded hearsay (plus Rule 403/redactions). Also, if intoxication evidence is in the record, expect courts to give clarifying/limiting instructions to prevent a “drinking excuses it” theme—so plan your proof and objections accordingly and preserve the correct grounds."

In re J.M.B. II

COA03

In a Travis County juvenile delinquency case, the State filed a Rule 162 nonsuit/motion to dismiss before any adjudication hearing. The trial court initially dismissed the petition but, the next day, signed an order vacating the dismissal and reset the case for adjudication based on policy concerns (including community safety and judicial confessions). The Third Court of Appeals held that, under Family Code § 51.17(a), the Texas Rules of Civil Procedure apply in juvenile cases absent conflict, and Rule 162 gives a plaintiff an absolute right to nonsuit before resting, leaving the trial court with a ministerial duty to dismiss unless collateral matters (pending claims for affirmative relief) remain. Because no collateral matters were shown, the trial court had no discretion to undo the nonsuit by vacating the dismissal and resetting the case. The court conditionally granted mandamus and directed the trial court to vacate its order vacating the dismissal, reinstate the nonsuit-based dismissal, and enter the nonsuit in the minutes.

Litigation Takeaway

"A properly timed Rule 162 nonsuit is mandatory, not discretionary: absent collateral claims for affirmative relief (fees, sanctions, counterclaims), the court must dismiss and cannot later “revive” the case for policy or case-management reasons. If a trial court refuses to honor—or tries to vacate—a nonsuit dismissal, mandamus can be the fastest way to enforce the ministerial duty and stop a case from being pushed back to trial."