Opinion Library

Evidence

Murray Lobb, PLLC v. Brandy Liss, Executor for the Estate of Mary James

COA14

In an estate dispute, the executor sued a former law firm for breach of fiduciary duty, alleging the firm “switched sides” and harmed the estate by filing and prosecuting litigation for the former joint client and by taking litigation positions attacking an assignment the firm had drafted. The Fourteenth Court of Appeals looked past the fiduciary-duty label and focused on the conduct actually pleaded: court filings, pleadings, and other litigation communications in related judicial proceedings. Because those litigation communications were a “fundamental part/main ingredient” of the alleged wrongdoing, the claims were “based on or in response to” the firm’s exercise of the TCPA-protected right to petition under Tex. Civ. Prac. & Rem. Code § 27.001(4). The court reversed the trial court’s denial of the TCPA motion (affirming only the sanctions denial), rendered judgment dismissing the claims with prejudice, and remanded for a mandatory award of reasonable attorney’s fees and costs under TCPA § 27.009(a)(1).

Litigation Takeaway

"If a party repackages complaints about what a lawyer filed, argued, served, or said in a case into a tort claim like “breach of fiduciary duty,” the TCPA may require early dismissal when the litigation communications are a core part of the claim—and dismissal triggers mandatory fee-and-cost shifting. Plead (or attack) the case based on what the petition actually alleges, not the cause-of-action label."

Diana Reismann Sexton v. Gilbert Sexton

COA14

In a consolidated Fort Bend County divorce/SAPCR and interspousal personal-injury action, the wife (pro se) appealed numerous rulings after the trial court granted summary judgment on her tort claims, adopted a jury verdict naming the husband sole managing conservator, entered a property division, and included a Chapter 11 vexatious-litigant finding against her. The Fourteenth Court of Appeals first analyzed whether each complaint was reviewable: it refused to revisit the indigency determination because it had already been finally reviewed under Texas Rule of Civil Procedure 145(g); held challenges to temporary orders were moot because the final decree superseded them; and held possession/access issues were moot because the child turned 18 during the appeal. Because no reporter’s record was filed, the court could not evaluate preservation and was required to presume missing evidence supported the jury findings and discretionary rulings, making the wife’s attacks on the jury verdict and property division unreviewable. On the issues that could be decided on the clerk’s record, the court affirmed the summary judgment on the wife’s personal-injury claims as effectively a no-evidence disposition on essential elements (including causation and damages). But it held the appellate record did not affirmatively support the statutory predicates for a Chapter 11 vexatious-litigant designation, and therefore modified the final decree to delete that finding while otherwise affirming the judgment.

Litigation Takeaway

"Appeals in divorce/SAPCR cases often turn on procedure, not merits: preserve error, secure a reporter’s record, and watch for mootness as children near 18. If you seek (or oppose) a vexatious-litigant finding, treat it like a record-driven statutory remedy—without evidence in the record establishing Chapter 11 predicates, an appellate court may strike the designation even while affirming the rest of the decree."

Geoffrey Quinn v. Kimberly A. Sergeant

COA01

After a trial court rendered a divorce judgment, the parties reached a settlement through mediation while an appeal was pending. The appellant requested that the appellate court set aside the trial court's original judgment and remand the case for the entry of a new judgment based on the Mediated Settlement Agreement (MSA). The appellee argued for a simple dismissal of the appeal. Analyzing Texas Rule of Appellate Procedure 42.1(a)(2)(B), the First Court of Appeals determined that it had the authority to vacate the trial court's judgment without reaching the merits to facilitate a settlement. The court held that setting aside the judgment and remanding for rendition was appropriate, ensuring that the parties would not be stuck with an outdated and enforceable decree that conflicted with their new agreement.

Litigation Takeaway

"When settling a case on appeal, parties should request that the appellate court set aside the trial court's judgment and remand for a new judgment under TRAP 42.1(a)(2)(B). Simply dismissing the appeal leaves the original judgment intact and enforceable, which can create significant legal friction if the settlement terms differ from the original court order."

Evidence

Christopher Joe Bradshaw, Sr. v. The State of Texas

COA03

In this Austin Court of Appeals criminal case, a father convicted of continuous sexual abuse of a young child argued the State failed to prove the statutory “30-or-more-days” duration element because the child’s testimony about being “ten” could be read to confine the abuse to a narrow, four-day window between the father’s arrival and the child’s 11th birthday. Applying the Jackson v. Virginia legal-sufficiency standard and deference to jury inferences under Hooper, the court held the jury was not required to adopt that restrictive reading. The jury could reasonably interpret the age-based exchange as referring to only one type of conduct and could rely on frequency testimony (weekly/nightly conduct), CAC interview corroboration (“basically every night”), living-arrangement context, and digital forensic evidence showing pornography/child-pornography-related activity across multiple months to infer a course of abuse lasting at least 30 days. The court also rejected challenges to the mandatory life sentence, the jury charge on duration, and the admission of extraneous-offense evidence (including a prior Oklahoma lewd-molestation conviction used for enhancement), but it modified the judgment to correct a clerical miscitation to the enhancement subsection and affirmed as modified.

Litigation Takeaway

"In child-safety litigation, don’t let the case turn on a child’s imperfect “timing” testimony. Courts allow factfinders to reconcile age-based or vague time references with pattern/frequency testimony and objective corroboration (CAC interview details, device timelines, household routines) to establish a longer course of conduct and defeat “it could only have happened during a short window” defenses. Also, preserve evidentiary and charge complaints precisely, and double-check statutory citations in orders/judgments—miscitations may be corrected but can create avoidable appellate issues."

Family Violence & Protective Orders

Brisby Ray Brown v. The State of Texas

COA01

In Brisby Ray Brown v. State, the defendant challenged his aggravated-assault-with-a-deadly-weapon conviction, arguing the jury charge improperly allowed a non-unanimous verdict by submitting, in the disjunctive, two distinct aggravated-assault offenses: (1) aggravated assault predicated on bodily-injury assault and (2) aggravated assault predicated on threat-by-assault, tied to different alleged deadly weapons. Applying the two-step jury-charge framework, the First Court of Appeals assumed/recognized charge error under Landrian because those are separate statutory aggravated-assault crimes requiring jury unanimity as to which offense was committed. However, because Brown did not object on unanimity grounds, the court reviewed only for Almanza egregious harm, considering the entire charge (including a general unanimity instruction), the evidence, closing arguments, and the record as a whole. On this record, the court concluded any error did not egregiously affect the fairness of the trial or the basis of the verdict and therefore affirmed the conviction.

Litigation Takeaway

"When a case is submitted on multiple alternative legal/factual predicates that carry different consequences, you must preserve error by forcing clarity at trial—object, request separate submissions/findings, and get a ruling. Otherwise, even a real “unanimity/ambiguity” problem will likely be upheld under a highly deferential harm standard, a lesson that translates directly to broad, multi-theory “family violence” findings in Texas family-law cases."

Erique Howard v. The State of Texas

COA14

After a jury convicted Erique Howard of multiple felonies, he elected judge-assessed punishment. Before the punishment hearing, the trial judge discussed Howard’s punishment exposure, referenced prior plea positions, and suggested a post-verdict negotiation range. After a recess, the court imposed a 50-year sentence, stating it was “in accordance with the plea agreement,” and no one objected or filed a motion for new trial claiming coercion or vindictiveness. On appeal, the Fourteenth Court of Appeals held the Pearce presumption of vindictiveness did not apply because this was not a resentencing after retrial, so Howard had to prove actual judicial vindictiveness from the record. The judge’s forceful comments and settlement-range discussion—paired with repeated disclaimers and a sentence matching the announced agreement—did not establish retaliation for exercising the right to trial. The court also held that complaints that the post-verdict sentencing agreement was involuntary, or that the trial court had to conduct an on-the-record voluntariness inquiry, were waived because Howard raised neither a contemporaneous objection nor a post-judgment motion developing those issues.

Litigation Takeaway

"When a judge “pushes a number” after a merits ruling, appellate courts often treat it as hard bargaining unless the record proves retaliation—and you still must preserve coercion/vindictiveness complaints immediately. If you believe a post-ruling agreement (Rule 11, parenting plan, property blueprint) was coerced, object on the record and follow up with a motion for new trial/to set aside that specifically pleads involuntariness and identifies the coercive statements; otherwise, the issue will likely be deemed waived."

Family Violence & Protective Orders

Sergio Adrian Contreras v. The State of Texas

COA13

In a criminal appeal arising from a continuous sexual abuse of a child conviction under Texas Penal Code § 21.02, the defendant challenged (1) alleged jury-charge error, (2) legal sufficiency on the statute’s “continuous period of 30 or more days”/multiple-acts element, (3) limits the trial court placed on voir dire of venire members with sexual-assault experiences, and (4) claimed prosecutorial misconduct. The Thirteenth Court of Appeals analyzed the charge complaints under Texas jury-charge harm standards (including the egregious-harm framework for unpreserved error), reviewed sufficiency under the Jackson v. Virginia rational-juror standard, and deferred to the trial court’s broad discretion to control voir dire absent a showing that limits prevented meaningful bias exploration and caused harm. On the evidence, the court treated the State’s proof as a corroborative disclosure pathway—school counselor/wellness disclosure leading to CAC forensic interviews and a child-abuse pediatric evaluation—and held that delayed outcry, developmental “fuzziness,” and qualifying language (“I think,” “I’m not sure”) did not render the children’s accounts legally insufficient. The court also found no reversible prosecutorial-misconduct error due to context, lack of preservation, curative measures, or lack of prejudice. The court affirmed the conviction.

Litigation Takeaway

"In family-violence/child-sex-abuse custody and protective-order cases, courts can credit a “disclosure pathway” (school disclosure → CAC interview → medical/clinical testimony) even when the child reports late and is imprecise on details; don’t assume “I’m not sure” impeachment will defeat safety findings. If you’re defending, focus on challenging the reliability of the disclosure process (suggestibility/contamination, anchoring, leading questions) and preserve a clean record—especially for voir dire and evidentiary limits—because appellate courts give wide deference without specific offers of proof."

Evidence

Rickye Henderson v. Ali Arabzadegan

COA03

In a quiet-title/deed-fraud lawsuit, the defendant repeatedly obstructed discovery—producing no responsive documents, asserting meritless objections, giving inconsistent explanations about missing devices/accounts, and refusing to comply with a court-ordered forensic imaging protocol designed to obtain electronically stored information (ESI) and test suspected fabrication. After incremental discovery orders and express findings of intentional concealment and repeated noncompliance, the trial court imposed “death-penalty” sanctions under Texas Rule of Civil Procedure 215 by striking pleadings/defaulting the defendant on liability, leaving only damages for a bench prove-up. The defendant then failed to appear for the damages trial, and the court rendered judgment quieting title, declaring the deed void, and awarding damages and attorneys’ fees. On appeal, the Third Court of Appeals held the sanctions were “just,” directly related to the discovery abuse, and consistent with due process; it also rejected complaints that excluded evidence (including purported newly discovered racially offensive emails) required reversal in a post-default posture, and affirmed an interlocutory summary judgment disposing of the defendant’s breach-of-contract counterclaim.

Litigation Takeaway

"Texas courts can and will strike pleadings and default a party who games ESI discovery—especially when a tailored forensic imaging order (with privilege safeguards) is ignored. Build a careful record of repeated noncompliance, prejudice, and the ineffectiveness of lesser measures; on appeal, due-process and “critical evidence” arguments are unlikely to resurrect liability after a sanctions default, and the case may proceed only on damages (if the sanctioned party even shows up)."

Norman v. Kahn Scheepvaart BV

COA14

In Norman v. Kahn Scheepvaart BV, a longshore worker appealed a take-nothing judgment after a jury found neither she nor the vessel owner’s negligence proximately caused her injury. On appeal, she attacked the jury charge as confusing and as improperly permitting certain theories/defenses and a “no one responsible” outcome, and she also sought a new trial based on alleged juror and bailiff misconduct. The Fourteenth Court of Appeals focused first on error preservation under Texas Rules of Civil Procedure 272–278 and the State Dep’t of Highways v. Payne framework, holding that most complaints were waived because counsel did not make timely, specific objections at the charge conference, did not ensure any requested charge language was in the clerk’s record in substantially correct form, and did not obtain an express ruling or endorsed refusal. The court rejected “preservation-by-paperwork,” explaining that pretrial filings and an unrecorded “tender” did not alert the trial court at the charge conference or create an appellate record under Cruz. The court declined to treat the alleged defects as fundamental error. As to the few issues arguably preserved, the court found no reversible charge error (one was not error; any other assumed error was harmless). The court also held the alleged juror/bailiff misconduct did not justify a new trial and affirmed the denial of the motion for new trial. The take-nothing judgment was affirmed.

Litigation Takeaway

"Jury-charge complaints live or die on preservation: object on the record before submission, state the defect plainly and specifically, tender substantially correct requested language, make sure it is file-stamped and included in the clerk’s record, and get a clear ruling/refusal. Pretrial proposed charges and vague “tenders” that don’t make it into the record won’t save an appeal, and misconduct/new-trial arguments require admissible proof tied to harm."

In re L.C.

COA12

In a DFPS SAPCR, the adoptive parent sought mandamus relief attacking the trial court’s temporary/permanency orders—complaining of alleged Chapter 263 noncompliance, continued DFPS possession after an adversary hearing, and a sua sponte “aggravated circumstances” finding that waived reasonable-efforts and service-plan requirements. While the mandamus was pending, the court of appeals in an earlier original proceeding ordered the trial court to vacate its temporary order and return the children; the trial court complied. DFPS then moved to dismiss the underlying SAPCR and the trial court signed a dismissal order. The parent argued the mandamus was not moot because the aggravated-circumstances finding could cause collateral consequences in future DFPS cases, foster-care licensing/employment, and related criminal proceedings. The Tyler Court of Appeals held it lacked jurisdiction because intervening events eliminated any live controversy: the children had been returned and the DFPS case was dismissed, so no effectual mandamus relief remained. The court also rejected the collateral-consequences exception, reasoning that the challenged aggravated-circumstances language appeared only in nonfinal temporary/permanency orders, which do not preserve a justiciable controversy once the case is dismissed. The court dismissed the mandamus petition as moot.

Litigation Takeaway

"Mandamus jurisdiction can disappear fast in DFPS cases: once possession is restored and the underlying SAPCR is dismissed, appellate courts will usually treat challenges to temporary/permanency findings as moot. If you need to undo damaging interim language (like “aggravated circumstances”), press for immediate trial-court correction or expedited appellate relief while the case is still live; reputational or speculative future harms from nonfinal temporary orders typically won’t satisfy the narrow collateral-consequences exception."