Opinion Library

Moises Galvan v. The State of Texas

COA08

In a bar‑shooting prosecution, Moises Galvan admitted shooting two men (killing one) but claimed self‑defense. After a mistrial in 2019, he was retried and convicted in 2023. On appeal, the El Paso Court of Appeals analyzed (1) claimed jury‑charge defects under Texas’s preservation‑dependent harm framework, (2) exclusion of a defense expert opinion under abuse‑of‑discretion gatekeeping and the need for a reliable, issue‑specific “fit” plus a proper offer of proof, (3) cumulative error, and (4) a Sixth Amendment speedy‑trial claim under the Barker v. Wingo balancing test. The court held Galvan failed to show reversible charge error or harm, the trial court acted within its discretion in excluding the defense expert (and any error was not shown harmful in light of the video/forensic and impeachment evidence), cumulative‑error relief was unavailable without multiple harmful errors, and the Barker factors did not warrant the drastic remedy of dismissal with prejudice despite the lengthy delay between indictment and retrial.

Litigation Takeaway

"Crossover lesson for family‑violence dockets: (1) If you need an expert to support a self‑defense/“reasonable perception” narrative, you must build a tight admissibility foundation and preserve the excluded opinion with a detailed offer of proof—otherwise exclusion will usually stand on appeal. (2) Delay‑based fairness arguments require a record of assertion of the right and concrete prejudice (lost evidence/witnesses, impaired presentation, child‑focused harm), not generalized complaints. (3) “Cumulative error” rarely rescues a case when each individual ruling fails on preservation, error, or harm."

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."

Ivan Lopez-Lopez v. The State of Texas

COA01

In Ivan Lopez-Lopez v. State, the First Court of Appeals reviewed a conviction for continuous sexual abuse of a child where the defendant’s primary appellate argument was that the complainant was not credible because her disclosures became more detailed over time and because the alleged abuse was too frequent to believe. Applying the Jackson/Brooks legal-sufficiency standard, the court viewed the evidence in the light most favorable to the verdict and refused to reweigh the jury’s credibility determinations. The court held the complainant’s testimony alone can be legally sufficient under Texas Code of Criminal Procedure article 38.07, and her testimony established the statutory elements of continuous sexual abuse under Texas Penal Code § 21.02(b) (child under 14, defendant 17 or older, two or more acts over a period of at least 30 days). The court rejected “evolving disclosure” and “too much abuse to be true” themes as credibility attacks for the jury, not grounds to overturn the verdict on appeal, and affirmed the conviction.

Litigation Takeaway

"Credibility-only challenges rarely win on appeal. A child’s incremental or “evolving” disclosure is treated as common—not inherently suspicious—and a factfinder may credit it. In family cases involving abuse allegations, expect appellate courts to defer to the trial court’s credibility calls; build (or attack) the case with objective, admissible proof and preserve legal-error issues (evidentiary rulings, due-process limits), not just arguments that the witness “wasn’t believable.”"

In re The Commitment of Raul Eliss Dominguez

COA03

In an SVP civil-commitment jury trial under Texas Health & Safety Code Chapter 841, the State’s expert psychologist referenced an unadjudicated allegation that Raul Eliss Dominguez sexually abused his four-year-old nephew. Although the issue was discussed outside the jury’s presence in a pretrial/limine setting, the trial court only cautioned counsel to object if testimony became inadmissible. When the expert mentioned the nephew allegation in front of the jury, Dominguez did not make a timely, specific objection, did not request a running objection, and did not obtain a ruling tied to the complained-of testimony. Applying TRAP 33.1 and Texas Rule of Evidence 103, the Third Court of Appeals held the complaint was not preserved and affirmed the commitment order. The court also held that, even assuming the expert’s testimony was admitted in error, any error was harmless (and effectively waived) because Dominguez later introduced the same or similar evidence through his own testimony without objection, triggering the “same evidence” rule.

Litigation Takeaway

"Motions in limine don’t preserve error. If an expert starts weaving unadjudicated “bad act” allegations into the basis for an opinion, you must object in real time, obtain a ruling (and a running objection if it will recur), and avoid later “opening the door” by eliciting the same facts yourself—otherwise you likely lose the issue both on preservation and on harmlessness under the same-evidence rule."

Appeal and Mandamus

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."

General trial issues

Erique Howard v. The State of Texas

COA14

After a jury convicted Erique Howard of multiple felonies, he elected judge sentencing. In a post-verdict discussion, the judge referenced the broad punishment range and encouraged the parties to confer and, if they wanted more control over the number, attempt to reach an agreement before the court assessed punishment. After a recess, the court imposed a 50-year sentence “in accordance with the plea agreement,” and the record contained no contemporaneous objection claiming coercion/retaliation and no motion for new trial or other post-judgment motion raising involuntariness or lack of judicial inquiry. On appeal, Howard argued the sentence reflected judicial vindictiveness for exercising the right to a jury trial and that the post-verdict sentencing agreement was involuntary (and the judge should have inquired into voluntariness). The Fourteenth Court of Appeals held the Pearce presumption of vindictiveness did not apply because this was not an increased sentence after a retrial, so Howard had to show actual vindictiveness from the record; the judge’s repeated statements disclaiming predetermination and the negotiated posture did not establish actual vindictiveness. The court further held the voluntariness and “duty to inquire” complaints were waived for lack of preservation because Howard did not object at the time and did not file a post-judgment motion to develop the issue. The judgment was affirmed.

Litigation Takeaway

"If you think a judge’s settlement/sentencing “range talk” crossed into coercion or retaliation, you must preserve it immediately. Make a record (objection/clarification/offer of proof), and if needed file timely post-judgment motions to develop involuntariness claims—otherwise the “the judge pressured me” narrative is usually unreviewable, and the agreement will be treated as voluntary."

Appeal and Mandamus

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."

General trial issues

Howard v. State

COA14

After a jury convicted Howard of two aggravated sexual assaults and aggravated robbery, he elected judge sentencing. At the punishment setting the judge discussed the punishment range, commented the case carried high exposure, and encouraged counsel-client consultation and negotiation. After a recess the parties announced a post-verdict punishment agreement, and the court imposed a 50-year sentence “in accordance with the plea agreement.” On appeal Howard argued (1) due process “judicial vindictiveness” for having gone to trial and (2) that the punishment agreement was involuntary and the court failed to conduct a voluntariness inquiry. The Fourteenth Court held the Pearce presumption of vindictiveness did not apply because this was not a retrial with an increased sentence after a successful appeal; therefore Howard had to prove actual vindictiveness. The record showed the judge’s remarks were facilitative/admonitory, repeatedly disclaiming any predetermined punishment, and the 50-year term matched the parties’ post-verdict agreement—so no actual vindictiveness was shown. The court also held voluntariness and “failure to inquire” complaints were forfeited because Howard made no contemporaneous objection when the agreement was adopted and filed no post-judgment motion raising involuntariness. Judgments affirmed.

Litigation Takeaway

"If you intend to later claim an on-the-record agreement (Rule 11/MBA/MSA or post-ruling deal) was coerced or involuntary, you must object immediately and/or file a timely post-judgment motion—otherwise the complaint is likely waived. And “judicial vindictiveness” is a narrow doctrine; absent a true Pearce posture, you must prove actual retaliation from the record, not just tough judicial commentary or settlement encouragement."

Oscar Antonio Rodriguez v. The State of Texas

COA14

In a prosecution for continuous sexual abuse of a child, the defendant sought to introduce evidence that the complainant had previously viewed pornography on a relative’s phone to support a fabrication theory. The State invoked former Texas Rule of Evidence 412 (rape-shield rule), and after a hearing outside the jury’s presence the trial court excluded the evidence, finding it did not fit any exception and did not show bias or motive to lie. The Fourteenth Court of Appeals affirmed, explaining that pornography exposure, at most, provides an “alternative source of sexual knowledge,” which does not satisfy Rule 412’s motive/bias exception absent a logical nexus showing why the exposure would lead the complainant to falsely accuse this defendant. The court also held any constitutional “right to present a defense” complaint was waived because the defense did not expressly raise that constitutional ground in the trial court and obtain a ruling.

Litigation Takeaway

"Porn/sexual-content exposure is not automatically admissible to undermine a child-complainant; without a concrete, non-speculative link to a specific motive or bias to fabricate against the accused, it is simply an alternative-knowledge theory and can be excluded under rape-shield/Rule 403 principles. Also, if you intend to argue evidence is “constitutionally required” (due process/confrontation/right to present a defense), you must clearly assert that ground, make a full offer of proof, and obtain an express ruling—or the issue is waived on appeal."

Daniel Cisneros Leyva v. The State of Texas

COA14

In a capital-murder/robbery appeal, the Fourteenth Court of Appeals addressed whether the State sufficiently corroborated an accomplice co-defendant’s testimony under Tex. Code Crim. Proc. art. 38.14, and whether the jury should have been instructed that other witnesses were accomplices. Applying the required method—disregarding the accomplice’s testimony and examining the remaining record—the court held the corroboration threshold is modest: non-accomplice evidence need only “tend to connect” the accused to the offense, not independently prove every element. Here, the non-accomplice evidence included (1) witnesses placing the group together shortly before the offense, (2) the defendant’s own statements putting him at the scene, (3) descriptions of the shooter’s clothing and a laser-equipped gun consistent with the defendant’s admissions, (4) cell-phone location/communication evidence showing coordination and post-incident calls, and (5) inconsistencies/falsehoods in the defendant’s accounts. The court also affirmed the refusal to give accomplice-witness instructions for other witnesses because the record contained no evidence they participated in the charged capital murder/robbery; mere association, presence, or tangential benefit is not enough to make someone an accomplice for charge purposes.

Litigation Takeaway

"When a case turns on one “insider” witness, don’t argue each corroborating fact must independently prove the whole story. Instead, focus the judge (or jury) on whether there are multiple independent circumstances that collectively *tend to connect* the accused to the alleged conduct (texts/calls, location data, third-party records, injuries/clothing/timeline congruence, and inconsistent denials). Conversely, resist attempts to discredit every supporting witness as “complicit” unless there is concrete evidence the witness participated in the *act alleged*, not just relationship drama or proximity."