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September 2010 Archives

Timeliness of an Affidavit

In the Interest of E.R.L.C., Minor Child, 2008- Mom and Dad divorced in September 2005 and were appointed joint custody. Later, the Dad filed for temporary orders based on his claims that the Mom was charged with public intoxication and had arrived drunk to pick up the child from him. Mom filed a motion to dismiss due to the absence of an affidavit required by TFC 156.102. Dad then amended and attached an affidavit. Trial court denied the Mom's motion to dismiss and granted Dad primary custody. Mom appealed the decision for the timeliness and sufficiency of Dad's affidavit. Court of Appeals found that the Dad's affidavit, filed seven days prior to trial date, was timely under TRCP Rule 63. 

State Jail Felony Punishment

a) Except as provided by Subsection (c), an individual adjudged guilty of state jail felony shall be punished by confinement in a state jail for any term of not more than two years or less than 180 days.
b) In addition to confinement, an individual adjudged guilty of a state jail felony may be punished by a fine not to exceed $10,000.
c) An individual adjudged guilty of a state jail felony shall be punished for a third degree felony if it is shown on the trial of the offense that:
     1) a deadly weapon as defined by Section 1.07 was used or exhibited during the commission of the offense or during immediate flight following the commission of the offense, and that the individual used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited; or
     2) the individual has previously been finally convicted of any felony:
          A) under Section 21.02 or listed in Section 3f(a)(1), Article 42.12, Code of Criminal Procedure; or
          B) for which the judgment contains an affirmative finding under Section 3g(a)(2), Article 42.12, Code of Criminal Procedure.

Pregnant After Divorce

In the Interest of P.D.D., A Child- After a husband and wife divorced, the wife learned she was pregnant. A paternity decree was set and the husband was ordered to pay child support, keep up insurance, and pay a portion of uninsured medical expenses for the child. Later the husband filed a contempt action against the wife for his possessory rights to the child. The husband was given make-up visitation and the wife was ordered to pay fees. The husband then filed a motion to modify custody which the wife counteracted with a request to increase child support. After this the wife then later filed for a motion to enforce the prior order regarding delivery of personal property items that belonged to the child.

Parents deny grandparents visitation, then ordered to pay.

Spencer v. Vaughn, 2008- First child is born to mother and father. Second child is born to same mother and second father. After the second marriage and child, the maternal grandparents filed suit for access to their grandchildren. They were granted limited visitation. After the order was signed, the mother and second father took the children and moved them out of the state without informing the maternal grandparents. After being located, the parents refused the grandparents' visitation rights. Two years later, the mother and second husband took the children and moved them back to the original state, again without telling the maternal grandparents. Three years later, the grandparents filed another suit for contempt and interference with possessory rights, the father of the first child also filed for suit to modify custody.

Newly Discovered Evidence

There are four requirements for a defendant to get a new trial based on newly discovered evidence: (1) the evidence was unknown to the movant before trial; (2) the defendant's failure to discover it was not due to a want of diligence on his part; (3) its materiality was such as would probably bring about a different result in another trial; and (4) it was competent, not merely cumulative, corroborative, collateral, or impeaching.

If the weight or credibility of the new evidence would probably not bring about a different result in the new trial, the trail court does not abuse its discretion by denying the motion for new trial.  When newly discovered or newly available evidence comes to light after the time for a motion for new trial has run, the defendant may raise these claims in a writ of habeas corpus as a claim of actual innocence. 

Plea Bargain Negotiations

Some cases have to be tried in front of a judge or jury.  Some cases both sides agree that the State of Texas would clearly be able to prove the accused was guilty, but they cannot come to an agreement on punishment.  So, many times in those cases an open plea or slow plea happens where the defendant can plead guilty to the offense and present evidence to a judge or jury to request a lower sentence than the State's recommendation.

A good example of an open plea would be a case where the defendant is charged with Aggravated Assault and the State and defense think it is a bad case for trial and they both think the defendant should be on probation.  The State will not offer anything but regular probation, and the defendant wants deferred adjudication to avoid a criminal conviction.  That would be an opportunity to do an open plea and ask the judge for deferred.

However, sometimes the defense and State both want to resolve the case prior to trial and they are able to negotiate a reasonable plea offer on sentencing that both sides feel they can live with.  Then, they enter into a plea bargain agreement and ask the court to accept it.

Divorce in Texas

Texas is a community property state much like most of the rest of the southwest.  That means that technically it is also a separate property state.  All assets that are brought in to the marriage are separate property assets which means that if there is a divorce then those assets are the individual who brought them into the marriage.  To the extent that those assets appreciate then the appreciated portion would then become community property.

Property that is received by inheritance after the marriage is an exception to the rule that all property acquired after the date of the marriage is community property.  Inherited property, regardless of when it is inherited before or after the divorce remains separate property.

In high asset marital estates, the nature of various pieces of property often becomes a highly litigated and contested issue.  

Burden of Proof in a Criminal Case

In order to arrest someone without a warrant, a police officer has to have probable cause that an offense has occurred.  The 4th Amendment protects citizens from unreasonable searches and seizures.  Unless there has been a felony committed and the suspect is about to escape, then those protections prevent an officer from making an arrest without a warrant.

Probable cause is a very low burden for the officer.  In most cases that is very easy for the officer to acquire.  However, the District Attorney must prove that the citizen accused committed the offense beyond a reasonable doubt at trial in order to obtain a conviction.  Just because someone is arrested for D.W.I. or Aggravated Assault with a Deadly Weapon or any other crime does not mean that they will be convicted.  

Reaffirmation Agreements

A secured creditor is a creditor that if you did not pay them, they could take something away from you.  A good example of that is a home mortgage creditor, or the bank that holds the note on a vehicle.  An unsecured creditor is a creditor who would have to sue you before being able to take any of your property.  A good example is a credit card company or an unpaid medical bill.

When you file a Chapter 7 or Chapter 13 bankruptcy then you can reaffirm the debt and continue to pay for a secured creditor if you want to keep the collateral.  If you sign the reaffirmation agreement on a vehicle, then you are reaffirming to the creditor that you intend to keep the collateral and pay the debt.  

At the same time, if you file bankruptcy because you have overwhelming credit card debt, medical bills or are facing repossession or foreclosure or some other related problem then you do not have to sign a reaffirmation agreement.  If you wish to surrender a secured asset back to the creditor, then the debt should be discharged if you do not sign a reaffirmation agreement.

Collin County Divorce

McKinney is the county seat of Collin County.  There are several different types of courts.  There are municipal courts where traffic tickets are heard along with very small civil suits.  There are county courts at law where misdemeanor cases and mid range civil suits are heard.

There are also federal courts where federal crimes are prosecuted and bankruptcy cases are held. In Texas, divorce cases are held in state district court.  Similarly, if a divorce is granted in Collin County then that means that in a subsequent suit affecting the parent/child relationship Collin County retains continuing exclusive jurisdiction over the case.  In other words, if there is a Motion to Modify Child Support or Child Custody in the future then the divorce court in Collin County would be the proper court to hear that Motion.

The same holds true about a subsequent suit to terminate parental rights.

The different chapters of bankruptcy

Chapter 7 bankruptcy is the chapter that we typically recommend if you are eligible because it is the quickest, the easiest, the cheapest and it generally does the most for you.  If you have a secured creditor (someone that if you did not pay them they could take property away from you) then you must remain current with that creditor if you want to retain the property.  However, the advantage in a Chapter 7 bankruptcy is that if you do not want to keep property (such as giving back a house or a car) then you can surrender the property back to the creditor and any debt that you owed that creditor would be discharged just like your credit cards.

Chapter 12 is for farmers.  Chapter 11 is a business bankruptcy for a "debtor in possession" who still has a viable business but it is just too burdened to continue doing business with the current debt load.

Chapter 13 is a wage earners plan.  It is designed to give you 60 months (5 years) to get yourself caught up on a house that you were behind on, to avoid repossession, or to stop penalties and interest on past due IRS debt.  Most of our clients pay back nothing to their unsecured creditors in a Chapter 13.

Criminal Probation Violations

Article 42.12 of the Texas Code of Criminal Procedure section 5(a) does not require a trial judge to inform a defendant prior to entering an open plea of guilty or nolo contendere about the possible consequences of a probation violation.

Because community supervision is not a sentence, an unlawful grant of probation is not an illegal or void sentence.  In a 2001 case, the court held that because the defendant failed to prove he was harmed by the unlawful grant of probation, where he had received probation even though he was ineligible for it because of a deadly weapon finding.  The Court found that the unlawful grant of probation did not contribute to his conviction or punishment but instead detracted from his punishment by allowing his a suspended sentence when he was not entitled to one, and therefore the defendant was not entitled to habeas corpus relief.

Arrest

Texas Code of Criminal Procedure Article 14.04 has four basic requirements that must be met to make an arrest without a warrant for an offense not committed within the presence of an officer:  (1) the person who gives the information to the peace officer must be credible; (2) the offense must be a felony; (3) the offender must be about to escape; and (4) there must be no time to procure a warrant.

A police radio broadcast and telephone messages from out-of-state authority may provide the basis of an arrest under this section.

The legislature has written this law very specifically, and largely out of 4th Amendment protections against unreasonable search and seizure as written by the founding fathers.  There is an strong preference for a warrant to be obtained prior to making an arrest.  If an offense is committed in the presence of an officer, and the officer believes he has probable cause to believe that someone committed it then he can make an arrest without a warrant.

Chapter 13 and the Means Test

In re Kagenveama, was a 9th Circuit case where there was an appeal of an order confirming the debtor's plan of reorganization, the parties disputed the meaning of two phrases contained in section 1325 of the Bankruptcy Code:  "projected disposable income" and "applicable commitment period."  The Ninth Circuit held that the Means Test determines "projected disposable income."

Specifically, "projected disposable income" is determined by multiplying "disposable income" by the "applicable commitment period."  The five-year "applicable commitment period" is inapplicable when above-median income debtors have a negative amount of disposable income. If the debtor has no projected disposable income, the court can confirm a plan lasting three years.  If the debtor has disposable income, then the Chapter 13 plan must survive for five years. 

Grandparent Access and Mother's Obstruction

In the Interest of J.R.D. was a Dallas case where the grandparent's filed a suit for grandparent access.  The trial was to the bench.  At the conclusion of the case, the mother moved for a directed verdict arguing that the grandparents had failed to meet their statutory burden showing that the denial of access would significantly impair the child's physical health and emotional development.  The motion was denied the trial court issued an order granting grandparent access.

Undersecured vehicles in Chapter 13

In Capital One Auto Finance v. Osborn, the 8th Circuit heard a case where the Chapter 13 debtors objected to an unsecured deficiency claim filed by the purchase-money motor vehicle lender, and the lender objected to the provision in the debtors' proposed plan that provided for the surrender of the motor vehicle in which the creditor had an interest in full satisfaction of its PMSI claim.

The Bankruptcy Court entered an order sustaining debtors' objection and overruling the creditor's objection, based on the effects of the hanging paragraph added to the Code by the 2005 law.

The creditor appealed.  The Court of Appeals held that the "hanging paragraph" does not eliminate an under secured creditor's deficiency claim when, in a Chapter 13 plan, the debtors propose to surrender a 910 car.

The Eight Circuit determined two important legal issues in this case.  1.  The debtor's historically-based disposable income calculation derived from Form B22C is a starting point for determining projected disposable income.  However, the final determination can take into consideration the income and expenses reported in Schedules I and J.

2.  The "applicable commitment period" was a temporal concept, such that above median debtors must propose and confirm a plan providing payments for a period of 60 months.

Criminal Responsibility For Conduct of Another

The Court of Criminal Appeals in a 1986 case determined that the evidence is sufficient to support a conviction under the law of parties where the actor is physically present at the commission of the offense and encourages the commission of the offense either by words or other agreement.

This allegation could be made in a number of different situations, including but not limited to, burglary or other theft cases.

Mere presence of the defendant at the scene is not enough, but it is a circumstance that, combined with other facts, may show that the defendant was a participant.  The evidence has to show that at the time of the offense, the parties were acting together, each contributing to the common purpose.

In determining whether a defendant participated in an offense as a party, the court may examine the events before, during, and after commission of the offense and may rely on any actions by the defendant that show an understanding and common design to commit the offense.

Uncles and Aunts Possessory Rights

In re J.O. was a San Antonio case where in August 2006 the maternal aunt and uncle who had cared for their 18 month old great niece off and on since birth and more recently on a consistent basis under a safety plan with CPS, filed suit seeking custody, alternatively, possession and access.

In September the court appointed them temporary managing conservators and the child's mother as a possessory conservator.  After a trial on the merits the court appointed the mother as managing conservator finding that she had cared for another child; had maintained appropriate housing and employment; maintained visits with the child; fostered a relationship between the child and her half sibling; and generally acted as an appropriate parent.

The father was appointed possessory conservator.  The court denied access to aunt and uncle who appealed.  They complained that the trial court improperly excluded or failed to consider certain evidence, erred in applying the parental presumption and abused its discretion by denying access.

The Court of Appeals ruled that while the Legislature intended for grandparents to be able to seek access in certain circumstances, no similar provision extended to aunts and uncles.

Relinquishment of Parental Rights and Paternity

Husband and wife were married in June of 1998 in Stamper v. Knox.  In October 1998 the wife had a brief sexual relationship with Mr. Taylor while continuing to have relations with her husband.  The wife gave birth to a child in June 1999 while the parties were still married and both believed the child to be the Husband's.

In 2001, the parties separated.  The husband filed for divorce in Galveston County and sought custody of the child.  The court issued standard temporary orders and appointed the parties joint managing conservators with standard visitation rights.  

Shortly after the divorce, the husband received an anonymous call indicating that he might not be the father.  The father had genetic testing done which confirmed that he was not the biological father.  Upon advising his ex-wife, she had genetic testing done that determined the biological father to be Mr. Taylor.  Taylor initially petitioned for paternity but then in 2002 signed an affidavit of relinquishment of parental rights.

Ultimately, the court of appeals determined that the ex-husband was not the child's father.

In Custody and Indicted for Miranda Rights Purposes

A defendant is in custody for 38.22 purposes where he has been arrested and indicted--even if he voluntarily accompanies law enforcement to a police station for the purposes of a polygraph exam and subsequently makes incriminating statements based on the exam results.

The fact the defendant voluntarily submitted to the polygraph examination had no bearing on restriction the State had placed on his freedom.

A defendant's spontaneous oral statements to police about a dream where the defendant pictured with great detail the murder scene were admissible even though they were not recorded.  Also, there is a case out of San Antonio where the State was allowed to admit an officer's memory of a defendant's statement, as long as it was not the result of custodial interrogation.  The officer's memory concerning what the defendant had written in a notebook several years earlier was admissible, even thought the notebook had long since been destroyed in a Houston case.

Surrendering a Car in Chapter 13

Tidewater v. Kenney was a matter of first impression for the Fourth Circuit, the court joined the Seventh, Eighth and Tenth Circuits in holding that after a debtor satisfies the requirements for plan confirmation by surrendering his 910 vehicle, the parties are left to their contractual rights and obligations, and the creditor may pursue an unsecured deficiency claim under state law. 

The Chapter 13 debtors purchased a car and granted the financier a purchase money security interest in the vehicle less than three months before filing for bankruptcy relief.  The financier objected to the debtor's plan, which proposed to surrender the vehicle in full satisfaction of the creditor's claim even though the vehicle was worth less that the creditor's claim.  The question before the court was whether the "hanging paragraph" in the Bankruptcy Code added by BAPCPA prevents a creditor with a PMSI in a "910 vehicle" from exercising his right under state law to an unsecured claim for the deficiency after repossession and the vehicle is surrendered by a Chapter 13 debtor.

The Fourth Circuit found in favor of the creditor.

Debtor's right to dismiss the case

A recent Northern District of Texas case was heard where the bankruptcy court was asked to determine the ability of a Chapter 13 debtor to move for dismissal while a motion to convert the case to Chapter 7 was pending due to the debtor's bad faith.  The court concluded that the debtor's right to dismiss the case was absolute.

The Court began with the Ron Pair premise that plain meaning is conclusive except in those rare cases in which the literal application of a statute produces a result demonstrably at odds with the intent of its drafters.  The language of the statutes states that, "On the request of the debtor at any time, if the case has not been converted...the Court shall dismiss a case under this chapter."

Noting that "shall" is generally interpreted such that it gives judges no discretion, and that there is little uncertainty in the words "at any time," the court found the statute to be unambiguous and that the debtor was allowed to dismiss.

Appealing Grandparent's Possession/Visitation

In the Interest of B.N.S. was a case out of Dallas where the father appealed from an order granting possession and access of his three children to their grandparents.  The mom and dad divorced in 2004 and were named joint managing conservators of their 3 children.  The mom began abusing drugs and Dad filed a motion to modify.

The maternal grandparents intervened and sought access. The trial court entered temporary orders giving mom supervised access but she failed to exercise it.  After trial the court appointed Dad as sole managing conservator, mom had supervised periods of possession and awarded the grandparents visitation.

The dad appealed.  The court of appeals reversed and rendered judgment denying access to the grandparents finding that because the mom had court ordered possession, even though she was not exercising it, the grandparents could not meet the requirements of the Family Code.

Crimes of Moral Turpitude

There is no universal list of which crimes constitute crimes of "moral turpitude" and which do not.  Courts have decided this on a case-by-case basis.  The new rules of evidence continue to incorporate the rule that if more than 10 years have elapsed, a prior conviction will not be held remote if there is an intervening crime that is a felony or a misdemeanor involving moral turpitude.

The rules of evidence provide a separate analysis standard if the conviction is more than 10 years old.  Several crimes that have been held to be crimes of moral turpitude are sexual assault of a child, lying to a police officer, mail fraud, tax evasion, prostitution, purchase of a child, indecent exposure, failure to stop and render aid, theft, aggravated assault by a man on a woman, and murder.

There are also several crimes that have been held not to be crimes of moral turpitude such as felony drug possession, delivery of marijuana, aggravated assault with serious bodily injury, possession of marijuana, and DWI.

Recent Texas Parentage Action

A 2008  case was heard by the Dallas Court of Appeals where the attorney general filed suit to establish child support from an alleged father.  The father filed an answer and asserted the statute of limitations as an affirmative defense and asked the court to deny genetic testing.  The trial court entered an order dismissing the suit with prejudice and the attorney general appealed.

Following the Austin Court of Appeals, the Dallas Court held that procedurally there is no device such as a MTD under the rules of civil procedure and that in this case, a motion for summary judgment on the limitations defense would have been the appropriate tool for the father to obtain relief.  

Because proper procedures were not followed, the COA reversed and remanded the cause back for further proceedings. 

Self Representation

Bad idea.  When a defendant affirmatively asserts his right to self-representation under a California case, a written waiver of the right to counsel is not required under the Texas Court of Criminal Appeals.

Adversary Proceedings on Mortgage Liens

Prior to confirmation, the Chapter 13 debtor in SLW Capital v. Mansaray-Ruffin filed a proof of claim on behalf of the mortgage creditor stating the debt was unsecured and in an amount of only $1,000.  Further, debtor's Chapter 13 plan included a special provision stating that the mortgage creditor's lien was avoided and the creditor held only an unsecured claim.  The mortgage creditor received notice of the proposed plan and proof of claim filed by the debtor, but failed to object prior to confirmation.  The plan was then confirmed without objection.

Nine months later, the mortgage creditor filed an adversary proceeding to determine the validity of its lien.  In upholding the rulings of the bankruptcy and district courts, the Third Circuit held that the provision in the confirmed plan could not override due process considerations that require all lien avoidance actions to be filed as adversary proceedings pursuant to the Bankruptcy Rule 7001.  Moreover, the debtor's attempt to modify the secured creditor's lien through the filing of an unsecured proof of claim violated the longstanding principle that lien holders may choose not to participate in a bankruptcy proceeding without substantively affecting their secured interests. 

Custodial Interrogations

Texas Code of Criminal Procedure 38.22 only applies to statements that are taken while the defendant is subject to custodial interrogation.  If either the "custodial" or "interrogation" predicates are not me then that section does not apply.

Arizona v. Miranda was the seminal case that guarded against custodial interrogations without the suspect being afforded an attorney.  Most people have heard the Miranda Rights read aloud on T.V...."You have the right to remain silent, you have the right to an attorney, anything that you say can and will be used against you in a court of law...etc."

However, if someone is not in "custody" then the protections do not apply.  In other words, if an objectively reasonable person would feel free to leave the encounter with the police then that person is not in custody.  

On the other hand, if someone is face down on the pavement with handcuffs on and the police officer standing there with a gun to the back of the defendant's head, then he is definitely in "custody."  However, if the cop does not ask him a question and does not read him his Miranda Rights and the defendant blurts out an admission then that may be admissible in court because there was no "interrogation."

Taking care of elderly parents in bankruptcy

In a 2009 case, the Chapter 13 Trustee objected to plan confirmation and challenged a $613 expense for a mortgage payment and taxes in the debtors' budget.  The mortgage was on a home in which the joint debtor's parents resided in.  Additionally, the home had been previously transferred to the debtors by the joint debtor's parents to secure a home equity loan.  The proceeds of this loan were used for home improvements and upkeep.  Thus, the property was part of the estate.

The joint debtors' parents were elderly and received no income other than social security.  The court recognized that this expense appeared to be the maintenance of a second home.  But, the court found the expense to be a "continuation of an actual expense that is reasonable and necessary for the case and support of the parents."  The Trustee argued that the appreciation of the value of the home would inure to the debtor's benefit.  The court stated that if an expense is deemed allowable, the fact that the payment might benefit a debtor or a creditor should not preclude the expenditure.  

Grandparent Possession after a CPS case

In re Smith was a case out of Houston were pursuant to an agreed order in 2006, the paternal grandfather and his wife were appointed joint managing conservators of their grandchild.  The mother and father were appointed possessory conservators and awarded limited access to the child.  Because the suit originated as a CPS case, it was handled in a Harris Court juvenile court instead of the family district court.  

After the order, the grandfather would occasionally allow the child to visit with the paternal grandmother who did not participate in the original proceedings.  The grandfather eventually stopped these visits over concerns for the child.  The paternal grandmother brought a suit to modify seeking grandparent access and requested temporary orders.

The grandfather filed a motion to dismiss asserting that the grandmother had no standing because she could not obtain relief under the Family Code because her son had court-ordered access to the child.

The motion to dismiss was granted.  A de novo hearing was held with the presiding judge.  The court of appeals was unwilling to extend the parental presumption to the grandfather who was basically functioning in the capacity of parent.

Diminished Capacity

Insanity is a defense in Texas to criminal conduct.  If, at the time of the offense, the defendant did not know that his conduct was wrong then that is a legal defense that requires an acquittal.  If someone is not competent to stand trial and they were not insane at the time of the offense, then they will be tried once they regain competency to stand trial and that is not a defense to the criminal conduct.

Competency to stand trial means that the defendant 1. has a rational and factual understanding of the nature of the proceedings against him and 2.  is able to communicate with his lawyer and assist with his defense.

However, diminished capacity is typically not a defense to criminal conduct in Texas.  That means just because someone is not all there mentally or has some kind of tendency that makes them have the urge to commit a crime does not provide them with a legal defense except in very limited circumstances with respect to the intent element of the offense.  In the DWI or intoxication manslaughter context, that exception probably would not apply.

Texas does not recognize diminished capacity as an affirmative defense or any lesser form of the insanity affirmative defense according to the Jackson v. State court in 2005.  In some situations, however, evidence of a mental disease or defect might be relevant to intent.  In Mays v. State, the court held that the defendant may present evidence of mental impairment at guilt/innocence to show he did not have the requisite mens rea.

Surrendering a Vehicle in a Bankruptcy

In a recent case, the debtor purchased a vehicle in which the creditor had perfected a first priority purchase money security interest.  With 910 days of the initial contract's signing, the debtor and his wife filed a Chapter 13 bankruptcy.  The debtors proposed to surrender the vehicle in full satisfaction of the debt.  The creditor timely filed a secured proof of claim and objected to the plan on the grounds the vehicle was worth less than the amount owed.

The bankruptcy court confirmed the plan.  The Fifth Circuit granted leave to take a direct appeal from the bankruptcy court.  

The issue before the Fifth Circuit was whether the hanging paragraph precludes a creditor with a PMSI in a "910 vehicle" from obtaining a state law deficiency judgment against a debtor under the Bankruptcy Code.  The Court analyzed the hanging paragraph and found that the paragraph prevents bifurcation for this type of secured claim.  However, the Court held that the hanging paragraph does not prevent the creditor from treating the deficiency as an unsecured claim in the plan.

Parentage Actions

In re Rodriguez and the Office of the Attorney General was a case out of Dallas, where in July 2007 the Attorney General filed a child support action relating to two children.  In October, the mom filed for divorce and the two actions were consolidated.  The dad filed a counter petition and denied paternity of the children and requested paternity tests, asserting that another man claimed to be the father.

All parties acknowledged that both children were born during the marriage and that both children were over the age of 4 when the divorce action was commenced.  After a hearing, the Administrative Judge ordered testing but did not specify a date.

The attorney general and the mother appealed to the presiding judge who affirmed the AJ.  AG and the mother sought mandamus relief asserting that testing should not be completed because the father was the presumed father and was barred from denying paternity based on the statute of limitations under the Texas Family Code.

The court of appeals denied a requested stay of the testing because there was no immediate threat of harm as no date for testing had been specified.  The mom appealed and the presiding judge ordered it done instanter. Mom appealed.

The testing facility processed the results in violation of the Court of Appeal's order. The appellate court ordered the results sealed and to be sent to them.  In regards to the mandamus proceeding, the dad argued that the statute had been tolled as a result of the mom's fraud in failing to disclose her relations with another man.

The mandamus was granted, and the court ruled that this was a matter for the legislature to take up whether or not the truthful father was ever discovered.The genetic samples were ordered to be destroyed.

Personal Injury Claims of Deceased and Divorced Parents

In re Collins is a case out of Houston where the mom and dad were appointed joint managing conservators of their child by order dated May 2003 and the mother was given the primary right to establish residence and to represent the child in legal actions.  In March 2007 the mother was killed in a building fire in Houston.  Within two days, the father sought legal counsel to pursue the child's claims arising from the mothers death.

As next friend, the father intervened in a suit brought by unrelated plaintiffs seeking damages arising from the same fire in which the mother was killed.  Two days before the intervention, the maternal grandparents filed a wrongful death suit in Harris County as next friend of the child.  In April 2007, the grandparents obtained an ex parte temporary restraining order from the Ft. Bend family court which deleted the suggested provision prohibiting the father from filing legal actions on behalf of the child.

The grandparents also filed a Motion to Modify seeking sole custody of the child.  The father filed a counter petition seeking sole custody.  At a temporary hearing the court appointed an amicus attorney for the child and authorized the amicus to manage all legal proceedings on behalf of the child related to her mother's death, including the right to hire counsel, to receive and review all documents relating to these proceedings and the duty to attend all hearings and depositions. 

The court of appeals determined that the mother's right to represent the child in legal actions expired at her death and passed to the father as the child's only surviving parent.

Pay Day Loans in Bankruptcy

In re Ferrell was a case out of the 9th Circuit where the court ruled statutory damages are not available for violations of the bankruptcy code.  The court also rejected a claim for actual damages and for attorney's fees.  The debtor received a pay-day loan, which included a financing fee and an interest rate in excess of 700%.  The trustee initiated an adversary proceeding by filing a complaint requesting the bankruptcy court to disallow the claim, alleging the loan company violated the Truth in Lending Act.

The trustee also sought damages and attorney's fees under both the federal and state statutes. The bankruptcy court found the loan company did violate the TILA and entered a default judgment for the trustee by granting the objection to the proof of claim, but denied the motion for damages and fees.

The 9th Circuit determined the trustee was not entitled to statutory damages and that consumers may not recover such damages.  

Criminal Mischief

Criminal mischief is where a person without the effective consent of the owner he intentionally or knowingly damages or destroys the tangible property of the owner or tampers with the tangible property of the owner and causes pecuniary loss or substantial inconvenience to the owner or a third person or makes markings on the property.

The amount of the money damages typically determines the level of the offense which can reach the level of 1st degree felony (the same level of offense as a killing someone).  So, what seems minor at first can turn into a nightmare.  

For purposes of the statute of limitations in a criminal mischief prosecution involving an unauthorized tap to a gas meter, the offense is a continuing offense that was being committed as long as the tap was installed and gas was being diverted. 

The criminal mischief statute does not require a showing of pecuniary loss if the defendant's actions caused "substantial inconvenience" to the owner or third person.  Also, it is a state jail felony to cause damage to property or a house with a firearm.  Shooting at houses, buildings, or cars is also made a third degree felony as "deadly conduct."

Avoiding a Default Judgment in Divorce

Mahady v. Mahady was a 2008 case out of Fort Worth where the husband and wife were married and had 5 children.  In 2005, wife left with the children and moved to California.  Husband filed for a divorce in Texas and was eventually able to serve wife with citation.  The wife sent an answer by UPS which was received in the district clerk's mail room and stamped at 9:28 a.m. on the date her answer was due by 10:00 a.m..  The husband appeared in court and proved up the divorce by default at 10:06 a.m. that same date.

The wife filed a Motion for New Trial providing proof of her timely answer but her Motion for New Trial was denied when she failed to appear for the hearing.  Wife then filed a bill of review.  Husband filed both a traditional and no evidence Motion for Summary Judgment but later withdrew the traditional motion.  Husband's no evidence motion challenged wife's proof on three of the four elements needed to prevail on a bill of review.

Despite proof that she timely filed an answer, the trial court granted the no evidence motion and wife appealed.  The court of appeals determined that wife's answer was at least some proof that she attempted to participate in the Texas divorce proceeding and further that in the default was wrongfully obtained in the face of a timely answer.  The Motion for Summary judgment was reversed and remanded for a trial on all issues.

Evading Arrest or Detention

Typically, this offense is charged as a Class B Misdemeanor and has a range of punishment of up to 180 days in jail, up to a $2,000 fine or both such fine and confinement.  However, if the act was committed in a motor vehicle then it is considered a State Jail Felony which has a range of punishment of 180 days to 2 years confinement in the State Jail Division of the Texas Department of Correctional Facilities, up to a $10,000 fine or both such fine and confinement.  Notably, there is no good time credit in State Jail.  The time is served day for day.

The information for evading arrest must allege that the defendant knew the police officer was attempting to arrest him according to the Texas Criminal Appeals Court in Jackson v. State

The felony evading arrest is a continuous offense that extends from the beginning of the chase until the apprehension of the defendant.  Fleeing or attempting to elude a police officer is a lesser-included offense of evading arrest because "the only difference between the two statutes ...is the element of evading arrest that requires [the defendant's] knowledge that the officer was attempting to lawfully arrest or detain him."

Future income and the disposable income

The Fifth Circuit recently interpreted the phrase "projected disposable income" in section 1325(b)(1) for above-median Chapter 13 debtors.  

The above-median debtor proposed a sixty-month plan pursuant to which she would pay nearly $200 per month.  In Schedule I and J, she listed a $1,062 contribution to her 401k loan.  The trustee objected to the plan confirmation.  The debtor testified that the 401k loan would be repaid within two years and that her 401k monthly contributions were capped at $1,250 per month.

The debtor argued that the then available income should not be considered at plan confirmation.  Additionally, the debtor argued that calculating "projected disposable income" involved multiplying current monthly income times the term of the plan.  The trustee argued that known future events should be considered when calculating "projected disposable income."  The plan was denied.  Debtor appealed to the district court who affirmed.  

The 5th Circuit said that in interpreting that statute, the Trustee's "forward-looking approach" should be used.  The court may consider evidence of substantial changes to the debtor's income and expenses prior to plan confirmation and during the term of the Chapter 13 plan.

The court stated that "disposable income" as defined by the Bankruptcy Code is the "starting point from which the court projects that income over the course of the plan."

Grandparent Access

In Spencer v. Vaughn, the mother and dad appealed from an order giving maternal grandparents rights of access to the grandchildren.  The suit involves two children, both born of the same mother but different fathers.  Mom and father of the first child divorced and the mom was appointed sole managing conservator.  After the divorce, the mom and the older child lived with the maternal grandma until the mom remarried.

The mom and the new husband had a child together.  Relations between the mom and the grandparents went south after her remarriage and in 1998 the grandparents filed a suit for access to their grandkids.  An agreed order was signed in 1998 giving the grandparents limited visitation with both children throughout the year.

At that time, all the parties lived in Texas.  Soon thereafter, mom and new husband picked up the family and moved to Utah without telling the grandparents.  When they were found, they repeatedly denied access to the grandparents for one reason or another.

Then after 2000 the mom and father moved back to Texas, and the grandparents did not find out about it for several years.   In 2003, grandparents filed a motion to modify and vacate the agreed order.  They also filed a motion for contempt and a suit for interference with their possessory rights.  The father of the oldest child filed a suit to modify custody.

After a jury trial the jury found in favor of the grandparents and granted primary custody of the oldest child to her father.  The trial court entered an order giving the grandparents significantly more visitation with their grandchildren, entered injunctions, ordered counseling and ordered mom and dad to pay $50,000 to the grandparents and $50,000 in fees to the father of the oldest child.

Property of the estate

In Bradley v. Gressett, the Chapter 7 Trustee sued Gressett under Texas law for conspiring with the debtor to fraudulently transfer property out of the estate of the debtor.  The district court granted a motion for summary judgment in favor of Gressett and held that the Trustee lacked standing to bring such a claim.  The Court reiterated that a trustee does not have standing to bring a tort claim that belongs exclusively to creditors of an estate.  The Court agreed with the Eight Circuit that the strong-arm clause did not overrule a previous case.

The Court clarified that a trustee is not authorized to collect assets unless these are owed to the estate.  

The Trustee argued that the claim it sought would remedy all creditors.  The Court focused on the distinction between claims that are "personal" to some creditors and those "general" to all arises after it is determined whether such claims are "properly assertable by the debtor or creditor, and not as a substitute for the analysis itself."

Fraud & Forgery

The elements of forgery are that the State shows that the defendant (1) with the intent to defraud or harm another (2) passed (3) a writing (4) that purported to be the act of another and (5) that the other person did not authorize the act.  The intent to defraud or harm may be established by circumstantial evidence according to the Texas Court of Criminal Appeals.

Forgery does not necessarily always involve enormous transactions.  And it does not always involve a false check.  The Texas Penal Code does not define "commercial instrument," but football tickets can be considered commercial instruments for purposes of forgery.

An indictment for passing a forged instrument does not suffer from a fatal variance when the store manager rather than the salesperson is named as the passee. 

Counterfeit driver's licenses also fall under the category of fraud.  Possession of a forged writing is a criminal offense

Adoption and CPS foster parents

A 2008 case out of San Antonio involved a set of facts where Child A was adopted by Cindy and Gary,  Subsequently, Child A's parents had another baby, Child B, who was born in 2005 and quickly removed from her home by CPS and placed with foster parents Michelle and Jerry. 

The parent's rights to Child B were terminated a year later and her foster parents filed a suit to adopt.  Cindy and Gary intervened and asked for custody of Child B based on her relationship with their adopted child A.  The trial court determined that Cindy and Gary lacked standing and denied custody as well as denied their request for visitation rights on behalf of the sibling.  

They would have had standing under the Texas Family Code if they could have established a substantial past relationship with the child.  Because they could not, they claimed they had a justiciable interest in the controversy sufficient to confer standing and that Michelle and Jerry had prevented them from developing a relationship with the child which would have otherwise qualified them under the Family Code.

Post-Nuptial Agreements Enforcement in Chapter 7

The Chapter 7 debtor sought to invalidate a post-nuptial agreement requiring him to pay money to his wife upon divorce.  The wife filed a motion to enforce the agreement and to lift the automatic stay.  She asked the bankruptcy court to permit her judgment and allow the divorce court to issue judgments and orders concerning child support and child custody.

The bankruptcy court granted the wife's motion for relief from the stay, holding that the debtor presented no evidence demonstrating any prejudice to him.  Thus, it permitted the divorce court to issue judgments and orders concerning domestic support obligations and separation of property. 

Burglary of a Motor Vehicle

HB 1887 creates new punishment enhances for the repeated commission of this offense.  In addition, for purposes of determining the appropriate penalty range, a previous conviction now includes any prior burglary of a vehicle for which the person was placed on community supervision including deferred adjudication,  even if the defendant successfully completed that supervision before the effective date of the new law.  

Getting access to some parts of the vehicle that do not require a break or an entry into the vehicle can still be burglary under the "breaking the close" theory.  For instance, reaching into the open bed of a pickup truck is "entry" under the "breaking the close" theory.

Taking items from a toolbox attached to the bed of a pickup truck counts as "entry."  Taking the  hubcaps or tire attached to the outside is not an entry and therefore not a burglary of a vehicle according to the Texas Criminal Appeals Court. 

Juvenile Statements

Juvenile confessions are not always excluded upon a violation of the juvenile statutes.  The Texas Code of Criminal Procedure Art. 38.23 requires a causal connection between the illegality and obtaining the evidence according to the Texas Criminal Appeals court in the Gonzales v. State case.

That case was remanded to consider whether failure to notify parents of arrest had connection to the juvenile giving a statement.  Even if an improper custodial interrogation results in an illegal confession, a subsequent confession may still be admissible.  In the Matter of R.J.H. was a 2002 case where the juvenile's non-custodial inculpatory statements made after the juvenile had already given the police a confession was inadmissible under the Texas Family Code because a magistrate was not present were nevertheless voluntary.

The Family Code section 51.095 statute does not apply if the juvenile is not in custody.

Self Defense

The most fundamental of all defenses is the right to defend one's self from another's unprovoked attack.  In Texas, we simply call that the right to self defense.  However, the defendant cannot start the fight.  In Smith v. State, the right to self defense was somewhat limited by the Court of Criminal Appeals in 1998.  A charge on provocation is required when there is sufficient evidence that the defendant did some act or used some words that provoked the attack on him, and the actor or words were reasonably calculated to provoke the attack, and the act was done or the words used with the intent that the defendant would have a pretext for inflicting harm on the other person.

Automatic Stay and Foreclosure Prevention

A Northern District of Texas case involved a debtor who filed her third bankruptcy petition within the prior year.  She then filed a motion to impose the stay pursuant to section 362 to prevent an impending foreclosure of her home.  The Court orally granted the debtor's motion. 

Before the order was entered, however, the mortgage creditor foreclosed upon the home.  The creditor did not have notice that the Court had orally granted the motion.  The debtor then moved to avoid the foreclosure as a violation of the automatic stay.  The Bankruptcy Court denied the debtor's effort to revoke the foreclosure, finding that the plain language of section 362(c) states that the imposition of the stay under (4)(B) becomes effective only on the date of the entry of the order.  Accordingly, because the foreclosure occurred prior to the entry of the order, the mortgage creditor's action did not violate the automatic stay.

Grandparents Visitation Rights After Adoption

A San Antonio case addressed a factual scenario where the maternal grandparents were named managing conservators of their four grandchildren prior to a termination of their biological parents rights.  After the termination a couple adopted all four children with the consent of the grandparents. 

More than 2 years later the adoptive couple sought and obtained a divorce naming them joint managing conservators of the children.  About eight months later, the grandparents filed an original suit for access, claiming that their consent to the adoption had been procured with a promise of continued visitation and they were no longer being allowed to visit the children.  

The adoptive mom challenged the suit for lack of standing and the court dismissed.  On appeal, the court determined because the grandparents could not demonstrate statutory standing under the Family Code, they were required to rely on a theory of collateral estoppel, claiming that the adoptive parents should not be allowed to challenge the suit because they would never have been permitted to adopt absent the grandparent's consent as managing conservators which was only given because of the promise of visitation.  

Criminal History and Expunction

If you have a criminal history, then it can effect a number of different aspects of your life.  It can effect your job, or your ability to obtain employment.

There are two ways to try to remove or seal your criminal record if you are eligible.  The first is an expunction.  If you were arrested for an offense and acquitted at trial or the case was dismissed, refused, or no-billed by the grand jury then you will not have a conviction on your record.  However, the fact that you were arrested for the offense will always be on your record until you get an Order signed by a judge on a Petition for Expunction.

If the case is dismissed, no-billed or refused by the District Attorney then you must often wait until the statute of limitations runs before you file.  If you are acquitted, or the prosecution has become barred for some other reason like res judicata or collateral estoppel then you are immediately eligible.

If you were placed on deferred adjudication for most offenses then you can file a petition for non-disclosure asking the court to seal your record.  For some offenses, there is a waiting period.  For many offense, you can file the petition upon your discharge and dismissal from probation.

Grandparents Seeking Custody

In the Interest of M.J.G. and J.J.J.G., Minor Children was a case out of Fort Worth where the mom filed for divorce from the dad in June 2006.  The court appointed the parties temporary joint managing conservators and gave dad visitation rights.  The maternal grandparents filed a petition in intervention seeking child custody in October 2006 and sought temporary orders.

The grandparent's intervention was based on the grandparent's claim that the mom and dad had relinquished custody to them for the requisite 90 days before the suit was filed.  A temporary order hearing was held in November.  

After the hearing, the court ordered a social study, set a hearing 10 days out and gave the grandparents the right to establish the kids domicile until the next hearing.

After the parents divorced a month later, and the court named the dad the primary parent.  However, the court of appeals held that the grandparents did not establish their standing to file an original suit because there had been no voluntary relinquishment to the grandparents.  Plus, the grandparents did not meet their burden to intervene because the evidence did not establish a finding that the kid's present surroundings and circumstances could significantly impair their welfare.

This further demonstrates that in child custody battles, the court's primary interest is almost always what is in the best interest of the child.


Chapter 13 Plan Payments

In Holcomb v. Hardeman, the debtors' original Chapter 13 bankruptcy case was dismissed on March 2, 2007, for failure to make payments.  The debtors filed a second petition a month and a half later.  They filed a motion a month after that to determine if the automatic stay from the first petition was still in effect.

The bankruptcy court determined that the original stay had terminated on the 30th day after the filing of the second case, and the debtor appealed.  The bankruptcy appellate panel reversed and remanded the case, ruling that the stay had not terminated. The court found that the language in the Bankruptcy Code was unambiguous, and the stay is only terminated with respect to the debtors and the debtors' property, and it did not terminate as to property of the estate.

Emergency Bankruptcy

In re Richardson was a 2008 case where the debtor filed a "naked" petition without any of the schedules or statements required by Section 521(a).  At no point did the debtor file any statements or schedules, and at no point did she file or obtain an extension of time for the filing of such schedules and statements.  The Court entered an Order Evidencing Automatic Dismissal.

Filing a naked petition is definitely not the most ideal way to file a bankruptcy.  It is a drastic alternative when a Chapter 13 petition must be filed to try to avoid foreclosure, or to prevent a car from being repossessed or from being sold after a repossession.

If the naked petition has to be filed, then it is imperative to timely file the schedules and statements within the deadlines.

Disabled children and non-familial conservatorship

A 2007 case out of San Antonio presented facts where mother and father lived together in Florida and had 2 children but were never married.  They separated between 2000 and 2002 and mother moved to Texas with the children.  In early 2005, mother was diagnosed with terminal cancer.  One of the children had Downs Syndrome and he was placed in a residential care facility because he became too much for mother to handle with her illness.

The other child began living with the mother's neighbor.  The mother died in December 2005, and the father tried to take the children back to Florida.  The neighbor refused and the father filed an original SAPCR.  This situation was unique, because it was not as if the father was trying to terminate parental rights.  He just wanted his child to be removed from the neighbor and come with him to Florida.

The neighbor filed a counter petition.  The court maintained the status quo under temporary orders and after final trial appointed the parties joint managing conservators and gave the neighbor the right to establish residency.  The ruling was affirmed on appeal.

Serum vs. Whole Blood in DWI Blood Draws

Plasma:  Whole blood minus the cells--obtained by centrifuging the blood.

Serum:  Whole blood minus the clotting elements--obtained after blood is allowed to stand and clot.  It is the clearer liquid above the clotted red cellular material.

An important inquiry, particularly where the blood alcohol analysis was done by a hospital rather that a forensic lab is whether whole blood or plasma/serum was tested.  Forensic labs typically test whole blood.  This is important because plasma or serum values are higher than whole blood values.  The variance can be anywhere from 16-20 percent. For that reason, when you are looking at the hospital blood results, if they tested plasma or serum, be prepared to convert it to its whole blood value.  There is a formula to do that. 

Blood Draws and DWI

If an officer arrests a person for an offense under Chapter 49 of the Texas Penal Code involving the operation of a motor vehicle or water craft for suspicion of operation while intoxication then there may be a blood draw to determine the blood alcohol concentration level.

The key is that the officer must have placed the person under arrest prior to requiring a mandatory blood sample, however, failure to tell the suspect explicitly that he is under arrest may not automatically invalidate the blood sample.  In Nottingham v. State, the Austin court found that reading the DIC-24 warnings constitutes evidence that the arrest element was met because even though the officer testified he did not arrest the suspect, the DIC-24 says in the body of the warning that the suspect is under arrest. 



Double Recovery for Child Support

In Warren v. Warren, the husband and wife were married for 23 years with two children.  As one of the issues decided by the court in a divorce proceeding, the court ordered husband to pay $3,100 a month in child support.  As additional child support the court ordered husband to purchase and maintain a separate car for each child; provide auto insurance for these vehicles and reimburse wife for 1/2 of all expenses for the kids extracurricular activities. 

The husband appealed the child support issues as well as various property issues.  The Court of Appeals affirmed the $3,100 monthly child support amount finding that although the amount was over the guidelines, it was less than 100% of the proven needs of the children.

That was reversed as was the trial court's additional orders above the $3,100/month child support payments.

Means Test Deductions

The new 2005 bankruptcy law make the debtor undergo a Means Test Analysis.  If the debtor passes the means test, then he is eligible to file a Chapter 7 Bankruptcy or will not have to pay back his credit card debt in a Chapter 13 bankruptcy.

The Tate v. Bolen case in the 5th Circuit took a look at how vehicle expenses are treated in the Means Test whether or not there is any debt owed on the car.

A Chapter 7 debtor claimed vehicle ownership allowance in the amounts of $471 and $332 in the means test and $343 for operating expenses for the two vehicles they owned even though there was no money owed on these vehicles.  The trustee moved to dismiss the case for abuse challenging the ownership deductions.  The court dismissed the case, and the debtors appealed to the district court, which affirmed.

The Fifth Circuit analyzed the "plain language approach" versus the "Internal Revenue Manual approach."  Under the IRM approach, the debtor is not allowed a vehicle ownership deduction if there is no debt payment.  However, under the plain language approach a debtor is allowed both the operation and ownership deductions regardless of whether there is a debt on the car.

Based on policy and case law on statutory interpretation, the court concluded that the plain language approach was the best interpretation.

Trump Entertainment Survives Bankruptcy

The state of the economy has not been kind to Atlantic City. Due to falling attendance at resorts in casinos in the area, Trump Entertainment Resorts, who owns three hotel and casino complexes in Atlantic City, was forced into filing Chapter 11 bankruptcy for the third time last year. Now, Avenue Capital, an investment firm that specializes in buying distressed debt, has succeeded in helping Trump Entertainment emerge from bankruptcy once again.

Double Jeopardy and Intoxication Assault

Following a traffic accident in which he struck a motor cyclist, the appellant in Ex parte Watson pled no contest to a misdemeanor charge of failing to yield the right of way while attempting to turn left. Later, he was indicted for the felony offense of intoxication assault.  He interposed a double-jeopardy objection via a pretrial application for writ of habeas corpus, but the trial court denied relief the Court of Criminal Appeals affirmed.

Joint Managing Conservators and Educational Decisions

In the Interest of C.C.J. and C.M.J. was a Dallas case where mom and dad were divorced in April 2005.  They were each appointed joint managing conservators and each given the right to make educational decisions subject to the agreement of the other party.  Dad was ordered to pay $1,025/month in child support.  In February 2006, the dad filed a Motion to Modify seeking the exclusive right to make educational decisions.

The mother countered with a Motion to Modify seeking exclusive rights with regard to educational decisions, and sought an increase in child support as well as attorneys fees.

After trial, the court awarded the right to make educational decisions exclusively to mom, increased Dad's child support by $121/month and awarded mom $5,000 in attorneys fees.  The dad appealed and challenged the sufficiency of the evidence. The Court of Appeals found that there was no evidence of living expenses for the mom and kids at the time of divorce, reversed and rendered modification denied.  The attorney fee issues was remanded back to the trial court and left the educational decision with the mom.

Delivery of a Controlled Substance

Ex parte Broadway was a case in 2009 where the applicant for Habeas Corpus pled guilty to delivery of a controlled substance and retaliation and true to enhancement paragraphs for prior convictions.  Before applicant entered his plea. the judge reviewed the options:  "Jury trial or you could take a plea bargain, which is a minimum of 25 years in prison or do an open plea which would allow me to consider giving some kind of drug treatment on probation."

Applicant declined the plea bargain and chose to enter an open plea with the hope that the judge would place him on deferred adjudication community supervision with drug treatment.  To secure the judge's ability to consider deferred adjudication, applicant waived his right to a jury trial.  After reminding Applicant that no plea bargain existed, the judge assessed punishment at 25 years' imprisonment.  In his applications for writs of habeas corpus, applicant alleged ineffective assistance of counsel on the grounds that his attorneys failed to inform him of his right to appeal the sentence and that they allowed him to sign a waiver of appeal before being sentenced.

The Court of Appeals found that the defendant knowingly, voluntarily, and intelligently waived his entire appeal as part of the plea even when sentencing was not agreed upon where consideration is given by the State for that waiver.  He appropriately waived his right to appeal because (1) his waiver was the result of a bargain, and (2) he knew the consequences of the waiver.

Divorced in Mexico and Motion to Enforce in Texas

In a case out of San Antonio the husband and wife were divorced in Mexico in 1998.  The decree obligated the husband to pay child support in the amount of 15,700 pesos per month or its US equivalent as well as additional amounts for vacations, school supplies and medical expenses.  At some point, the husband stopped paying support.

In 2004, the husband agreed to transfer his interest in a house and car to the wife in exchange for a release of $62,000 in arrearages.  The husband then again failed to pay child support.  In 2005, the wife registered the foreign decree and filed a motion to enforce.

After a bench trial, the court rendered judgment for the wife in the amount of $70,000 finding that the 2004 agreement failed for lack of consideration.  The trial court also awarded pre-judgment interest and attorneys fees.  The husband complained about the trial court's use of $1,800/month as the basis for calculating the arrearages because this was an improper conversion from pesos which thus operated as a modification.

Injunctions

In re Beard is a case out of Dallas where the debtor in a Chapter 13 Bankruptcy case was allegedly engaged in delaying tactics to postpone or prevent his eviction by the mortgage creditor.  The creditor sought an injunction preventing the debtor from filing suit against it.

The court determined that the motion was neither a core proceeding as defined by the bankruptcy code nor did the debtor consent to jurisdiction as provided for in the Bankruptcy Code.  Therefore, jurisdiction could only flow from section 157 which provides for "related to" jurisdiction.

Therefore, the Court ruled that it could only make recommendations, and the creditor must receive relief from the district court.  In dicta, the court suggested that even if the debtor had consented to jurisdiction, the court would have no way to grant meaningful relief to the creditor.  Under Fifth Circuit precedent, "a district court's pre-filing injunction does not extend to state courts, federal courts outside the ruling court's circuit or higher (appellate courts)."  

The court noted that a bankruptcy court might be considered inferior to a district court, and therefore any such injunction purporting to prevent the debtor from filing suit would be ineffective.  Accordingly, the court ruled that the case must be heard by the district court.

Drug Possession

In Votta, the defendant was charged with two counts of possession of drugs and two counts of bail jumping and failure to appear.  Because he was incarcerated in a federal facility while these charges were pending, he sought a speedy disposition under the Interstate Agreement on Detainers Act.  When the State failed to bring appellee to trial within the 180 day limitation period set out in the Act, the charges against him were dismissed with prejudice.

The State appealed the dismissal, and the Court of Appeals affirmed.  The Court of Criminal Appeals, however, reversed the trial court.  The trial court did not enter findings of fact and conclusions of law.  Without findings, the court could not conclude that the prosecuting officer and the appropriate court properly received notice of appellee's request for disposition even though it was sent under a different name than that under which the charges were filed and to the county court rather than the district court where charges were pending. 

Chapter 13, Child Support, and Jail

In re Repine was a case exemplifying how there is an overlap between Criminal Law, Bankruptcy, and Family Law sometimes.  The debtor filed Chapter 13 while incarcerated for failure to pay child support. The debtor and his ex spouse negotiated an agreement, and the bankruptcy court entered an Agreed Order to give that agreement effect.

However, the attorney for the ex spouse continued to oppose the debtor's release from jail in family court, because she was concerned her fees would not be paid.  The attorney sent a fax stating she would not appear in court to submit an agreed order releasing the debtor from jail until she received payment.  The debtor and ex spouse jointly moved to enforce the Agreed Order in the bankruptcy court and for the debtor's immediate release from jail, and explained the attorney's refusal to agree to the release from jail until her fees were paid.

The Bankruptcy Court ordered the attorney to appear the next day and show cause why she should not be held in contempt for attempting to collect her fees in violation of the automatic stay.  The attorney failed to appear, was subsequently taken into custody and the bankruptcy court admonished her to cease her collection of fees from the estate.


Motion to Modify Child Support

In a recent case, the husband and wife divorced in 2003.  The decree obligated the husband to pay the wife child support of $700/month for two kids.  His tax returns for 2003 and 2004 showed that he made around $50,000 per year.  In 2006, wife filed a Motion to Modify seeking an increase.

Husband did no produce any tax returns for 2005 or 2006 but claimed that he made roughly $57,000 in both years.  The husband conceded that between March 2004 and April 2005 he also deposited $83,000 in his personal bank accounts, claiming at different time that this came from royalties, loans from family members and loans from his retirement funds. 

The husband contradicted himself several times on cross-examination about the source of these funds.  Wife testified that she believed husband had a side job and further that the needs of the children had increased since the divorce because they were now enrolled in school and involved in various activities which cost money.  She also testified that she was not working at the time of divorce but was now making about $400/month.  After trial the court increased the child support to $1,075 a month.

The Court of Appeals analyzed the evidence and found that wife had proved a material and substantial change and that the amount of support ordered was not an abuse of discretion.

Exemptions and Negligent Homicide

A case out of the 1st Circuit dealt with a debtor who was found guilty of negligent homicide by a motor vehicle.  She settled the case with the victim's husband and then filed Chapter 7 bankruptcy.  The debtor claimed a homestead exemption of $500,000.  She argued that the negligent homicide was not a "criminal act" under section 522(g)(1)(B)(iv), thus her homestead exemption should not be capped.  

She claimed that in order for negligent homicide to be a criminal act, there must be a mens rea requirement beyond negligence.  Additionally, the debtor argued that public policy required the homestead exemption be liberally construed.  The court of appeals concurred with the bankruptcy court's holding that the term "criminal act" included negligent homicide by a motor vehicle and that a conviction was not required to trigger the cap on the homestead exemption, and it was capped at $125,000.

Cocaine

In Langham v. State, the Court of Criminal Appeals reversed the defendant's conviction for possession of controlled substance.  The appellant was arrested after police found cocaine residue in her house.  The search was executed pursuant to a search warrant based on a confidential informant's statements to police that a crack-cocaine enterprise was being operated out of the residence.

These statements were introduced through the testimony of Detective Smith over defendant's hearsay and Crawford confrontation objections. Appellant was found guilty of possession of controlled substance less than one gram and sentenced to 18 months in state jail.

The Court of Criminal Appeals held that the Detective's testimony recounting the out-of-court statements of the informant were testimonial in violation of the Confrontation Clause.  The Supreme Court has identified three types of out-of-court statements that could be regarded as testimonial, including statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

Child Support and Sole Managing Conservatorship

In the Interest of G.L.S., was a case out of Tyler where the husband and wife were divorced in 2001.  Wife was named sole managing conservator.  Husband was ordered to pay 50% of the cost of health insurance and 50% of uninsured.  Husband was not ordered to pay child support but he was responsible for all costs of transportation associated with his visitation.

In 2006, the wife filed a motion to modify seeking child support and asked that weekend visitation be suspended because the husband was living in a homeless shelter.  The husband countered asking for child support claiming that he could not afford housing because wife relocated which increased his expenses for visitation.  Both parties were pro se.

The court sent the parties notice of trial and after trial the court modified visitation, ordered child support of $240/month and found arrearages over $5,000.  On appeal, the husband argued that wife should not have been allow to proceed to trial without producing the financial information required under the Family Code.  However, that issue was not preserved.

The Court of Appeals found in the wife's favor and affirmed the trial court's decision.

Motion for Enforcement and Habeas Corpus

In the In re Burcie case out of Fort Worth the mother and father were divorced in 2004.  The father was ordered to pay child support of $865 on the first of each month.  In March 2008, the mother filed a motion to enforce alleging that the father had failed to pay the full amount due on each of the payment dates set out in a chart that was contained in the motion to enforce.

The chart contained columns for (1) due date; (2) amount due; (3) date paid; and (4) amount paid.  The motion requested a finding of contempt for each violation. 

After a hearing the court found the father in contempt and the order recited that he had failed to pay child support as ordered in the amounts and on the dates "shown below" and the court pasted the chart from the motion into the order.  The order found father in contempt for each separate failure to pay as ordered and that punishment for each separate violation was a fine of $500 and confinement in the county jail for 30 days to be served on weekends.

The father filed for habeas corpus relief complaining that the enforcement order is void because it fails to identify the dates of noncompliance, how many violations occurred, and whether the sentence for each violation was to run concurrently or consecutively.

The Court of Appeals agreed with the father because the chart does not specify which entry counts as a violation and as such there is no way to determine how many violations occurred for purposes of calculating the father's jail sentence or whether the sentences are to run concurrently or consecutively.  The petition for habeas corpus was granted. 

Judgment Liens

In re Bading is a Western District of Texas case where the debtor owned two adjoining tracts of land, one of which contained the debtor's homestead.  A creditor held a valid judgment lien on both tracts of land.  The debtor wanted to sell both tracts, but the sale was prohibited under the lien agreement, as the creditor had released the lien on the tract where the debtor's homestead stood but refused to release the lien on the second tract. The debtor sold the tract on which the homestead was located and then filed Chapter 13 bankruptcy.

Under the Texas Property Code, a debtor has six months to reinvest the proceeds from the sale of a homestead into a new homestead in order to take advance of the exemption.  The creditor argued that the six month period began when the first tract was sold. The debtor argued, and the court agreed, that the six month period would only begin when the second tract was sold because the homestead consisted of both tracts.  

The creditor's lien to the second tract of land was then voided in bankruptcy, and the debtor was granted a motion to toll the six month period.  The court said the debtor had been precluded from completely disposing of her homestead because the creditor refused to release both tracts.

Aggravated Assault with a Deadly Weapon on Police Officer

In Juarez v. State, a 2010 case the Texas Court of Criminal Appeals held that the Defendant is required to admit all elements of a charged offense, including the culpable mental state, to be entitled to a necessity defense instruction.

In Juarez, the appellant was convicted of aggravated assault on a police officer with a deadly weapon after he bit Officer Burge during a struggle.  Appellant testified that the biting was accidental; he also said he did it because the cop was grinding his face into the dirt, making him feel as though he was suffocating.  He asked for a charge on the justification defense of necessity, but because he denied culpability for the crime, the trial court denied that instruction. The Court of Appeals held that a defendant need admit only the prohibited act, not the culpable mental state.

In reversing, the Court of Criminal Appeals explained that the doctrine of confession and avoidance applies to the Penal Code's necessity defense, and that doctrine requires an admission to the conduct, which includes both the act or omission and the requisite mental state. 

Conservatorship and Possession

A case out of Dallas was heard in 2007 that involved a mother and father who had one child.  When the child was two, they divorced and the mother was appointed sole managing conservator.  Ten years later, the father filed to modify custody.  The father lived in Oklahoma at the time and the mother and child lived in Texas.

The trial was to a jury who gave the father sole custody.  The evidence suggest that the mother had been abusive to the child and further the child had executed a preference to live with the father.  Mother represented herself pro se.  Mother waived her complaints about the jury charge for failure to object.  The court of appeals found sufficient evidence to support the jury's verdict.

Motion to Suppress Confession

In Carter v. State, after being arrested for possession of a controlled substance, appellant made incriminating statements in response to the arresting officer's questioning in the police car on the way to the station.  Appellant filed a motion to suppress, alleging that the statements were obtained in violation of his Miranda rights.  

The judge admitted the post-Miranda statements to the arresting officer even though the officer had asked three questions before reading Appellant his Miranda rights.  The Court of Appeals reversed, holding that the trial judge improperly admitted Appellant's statements because they were elicited during an illegal two-step interrogation.

The Court of Criminal appeals reversed holding that the record and reasonable inferences from that record support a finding of voluntariness.  This case involves the distinction between "inadvertent" pre-Miranda questioning and "deliberate" two-step questioning to avoid Miranda protections.

Violation of Automatic Stay

In The Johnson v. Smith case, the bankruptcy court awarded debtors approximately $6,000 in damages and attorneys' fees based upon a car dealership's willful violation of the automatic stay in repossessing and retaining their vehicle that was the collateral for the secured loan.

During the pendency of the car dealership's appeal of the Bankruptcy Court's ruling, the debtor's chapter 13 proceeding was dismissed for failure to timely make the plan payments.

The Tenth Circuit bankruptcy appellate panel held that debtors' action for willful violation of the automatic stay survived the dismissal of the underlying bankruptcy case.  In doing so, the Court looked to the "core" nature of a stay violation proceeding as belonging solely in Bankruptcy Court, as well as public policy considerations in punishing violations of the Bankruptcy Code.  The Court also found similar decisions from other courts to be persuasive on the issue.

Automatic Stay Provision of the Bankruptcy Code

The In re Williams court ruled, at a hearing on the debtor's motion to extend the automatic stay, that the relief requested could be granted, if the debtor filed either a wage order or notice of commencement of an automated clearinghouse (ACH) draft of his bank account.  The debtor failed to file either a wage order or an ACH notice, and the court denied the motion. 

On the debtor's Motion for Reconsideration, the court held that it could not reconsider the denial of the motion because it was more that 30 days after the date of the filing of the petition and it would effect an enlargement of a substantive right.

The bankruptcy court determined that, to the extent the debtor's motion sought "other and further" relief, the court could consider whether to impose a stay under Section 362(c)(4).  However, the court declined to do so in light of the debtor's continued failure to file a wage order, or an ACH or EFT authorization.

Involuntary Confessions

In a recent capital murder case out of Texas, the appellant was charged with capital murder after confessing on videotape to shooting a man.  Appellant filed a motion to suppress his confession, contending it was involuntary and obtained in violation of the federal and state constitutions and Texas law.  

At the suppression hearing, the interrogating officer admitted he had fabricated a forensic lab report falsely stating that appellant's fingerprints were found on the murder weapon to convince appellant to respond to his questioning and give him incriminating information.

The Court of Criminal Appeals held that the confession was inadmissible under the Texas Code of Criminal Procedure 38.23 because the officer fabricated documentary evidence in violation of Texas Penal Code 37.09 and used it to persuade a suspect to confess. 

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