Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of August 27, 2012

NOTE: Summaries are prepared by the court's staff attorneys and law clerks for public information only and reflect his or her interpretation alone of the facts and legal issues. The summaries are not part of the court's opinion in the case and should not be cited to, quoted, or relied upon as the opinion of the court.

Links to full text of opinions (PDF version) can be accessed by clicking the cause number.

In re E.P.C., No. 02-11-00025-CV  (Aug. 30, 2012)   (en banc) (Gardner, J., joined by Livingston, C.J., and McCoy and Meier, JJ.; Dauphinot, J., concurs with opinion; Walker, J., concurs with opinion, joined by Gabriel, J.).  [Note: all three opinions are at the same link.]

Held:   This court's holdings in A.J.M., No. 02-11-00137-CV, 2012 WL 2877457, at *1 (Tex. App.—Fort Worth July 16, 2012, no pet. h.) (op. on reh'g) (en banc), and In re D.W., 249 S.W.3d 625, 645 (Tex. App.—Fort Worth) (en banc), pet. denied, 260 S.W.3d 462 (Tex. 2008) (per curiam), require that we address Father's legal and factual sufficiency challenge on its merits. Moreover, legally and factually sufficient evidence supports the trial court's statutory endangerment and best interest findings concerning the termination of Father's parental rights to the child. Finally, the trial court did not abuse its discretion by appointing the Department as the child's permanent managing conservator.

Concurrence by Justice Dauphinot: Father forfeited his conclusory sufficiency issue under former section 263.405(i).

Concurrence by Justice Walker:  For the reasons set forth in my concurring opinion in In re A.J.M., No. 02-11-00137-CV, 2012 WL 2877457, at *10-12 (Tex. App.—Fort Worth July 16, 2012, no pet.) (op. on reh'g) (en banc) (Walker, J., concurring), I would hold that Father waived his sole issue on appeal by not including that issue in his statement of points and also by not making an as-applied challenge to former Texas Family Code section 263.405(i).

Ace Fire Underwriters Ins. Co. v. Simpkins, No. 02-11-00228-CV   (Aug. 30, 2012)   (Gardner, J., joined by Livingston, C.J., and Gabriel, J.).

Held: Legally sufficient evidence supports the jury's verdict that the decedent suffered a compensable injury arising out of his employment. While the trial court erred by submitting "producing cause" to the jury, the error was harmless. In addition, the trial court did not err by refusing to submit additional definitions and instructions requested by Appellant, nor did the trial court err by awarding attorney's fees to Appellees' attorney at an hourly rate in excess of $150 per hour.

Ex parte Moreno, No. 02-11-00272-CR  (Aug. 30, 2012)   (Livingston, C.J., joined by Gardner and Meier, JJ.).

Held: Viewing the evidence in the light most favorable to the trial court's ruling, the trial court did not abuse its discretion by denying the relief requested in Appellant's application for a writ of habeas corpus. The trial court reasonably concluded that Appellant failed to carry his burden to show that he would not have pled guilty had his trial counsel informed him of the immigration consequences of his guilty plea.

Holmes v. State, No. 02-11-00304-CR  (Aug. 30, 2012)   (Meier, J., joined by Livingston, C.J.; Dauphinot, J., concurs with opinion).  [Note: both opinions at the same link.]

Held: Appellant lodged no objection to the court's charge or sentence during the punishment phase of the trial, nor did he raise this argument in a motion for new trial. Because he asserts his due process challenge to the enhancement statute for the first time on appeal, Appellant forfeited this argument for appellate review.

Concurrence: Appellant's complaint, raised for the first time on appeal, is an as-applied challenge to former section 12.42(a)(1) of the penal code. He therefore forfeited his complaint by failing to raise it in the trial court. Based on the reasoning of Judge Cochran in her concurring opinion in Karenev v. State, I do not join the majority to the extent that it holds that Appellant forfeited a facial challenge to the statute.

Diaz v. State, No. 02-11-00373-CR  (Aug. 30, 2012)   (Walker, J., joined by McCoy, J.; Dauphinot, J., concurs with opinion).  [Note: both opinions at the same link.]

Held: Diaz has not met his burden of showing by a preponderance of the evidence that his counsel's failure to file a motion to recuse the trial court judge or failure to object that the same judge who had signed the blood warrant presided over the suppression hearing and the trial fell below the standard of prevailing professional norms.

Concurrence: The inescapable partiality that results when the trial judge presiding over a hearing on a motion to suppress is the same judge who signed the warrant deserves further scrutiny.

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