Opinion Library

Appeal and Mandamus

Bravo v. Bravo

COA02

In Bravo v. Bravo, a Husband challenged a final divorce decree that appointed the Wife as sole managing conservator, denied him all access to his children, and ordered child support. He argued he received only four days' notice of the trial and that the evidence was insufficient to support the findings. The Fort Worth Court of Appeals analyzed the case under Texas Rule of Civil Procedure 245 and the Texas Rules of Appellate Procedure. The court held that because the Husband's attorney appeared and announced 'ready' at trial, any objection to the 45-day notice requirement was waived. Furthermore, because the Husband failed to provide a reporter’s record (the transcript of the trial), the court applied an irrebuttable presumption that the evidence presented at trial was sufficient to support the judge's rulings. The appellate court affirmed the trial court's decree in its entirety.

Litigation Takeaway

"Procedural technicalities can win or lose an appeal before it even begins. In Texas family law, if your attorney announces 'ready' for a hearing, you waive any right to complain about lack of notice. Additionally, you cannot win an appeal based on 'lack of evidence' if you fail to provide the appellate court with the transcript of the trial; without that record, the court will automatically assume the trial judge had enough evidence to make their ruling."

Appeal and Mandamus

IN RE ADNAN UMAIR JANJUA AND UZMA JANJUA, Relators

COA05

The Fifth Court of Appeals dismissed a petition for a writ of mandamus filed against a county clerk who allegedly refused to file specific documents. The court analyzed its jurisdiction under Texas Government Code § 22.221, noting that while it has the power to issue writs against judges, its authority over non-judicial officers like clerks is strictly limited to instances where the writ is necessary to protect the court's own appellate jurisdiction. Because the relators did not demonstrate that the clerk's refusal interfered with a pending appeal, the court held it lacked jurisdiction to intervene.

Litigation Takeaway

"You cannot 'leapfrog' the trial court when a clerk refuses to file a document; you must first file a motion to compel in the trial court and obtain a ruling from the judge before seeking mandamus relief from a Court of Appeals."

Appeal and Mandamus

IN RE THANH VAN TRAN

COA05

In In re Thanh Van Tran, the Relator sought a writ of mandamus to challenge a capias order issued by the 494th District Court of Collin County. The Dallas Court of Appeals denied the petition on procedural grounds, holding that the Relator failed to satisfy the "predicate-request requirement." Under Texas law, a party seeking the extraordinary remedy of mandamus must generally demonstrate that they first asked the trial court to correct the perceived error—such as by filing a motion to vacate the order—and that the trial court refused. Because the Relator failed to seek relief at the trial level first and did not prove that such a request would have been futile, the Court denied the petition without addressing the underlying merits of the capias order.

Litigation Takeaway

"You cannot bypass the trial court when seeking emergency appellate relief. Before filing a petition for writ of mandamus to challenge a capias or enforcement order, you must first file a motion to vacate or modify that order in the trial court to create a "refusal record" for the court of appeals."

CB Sanders v. The State of Texas

COA07

In Sanders v. State, the Seventh Court of Appeals addressed whether an appeal has merit after a defendant enters a 'plea of true' to violating community supervision. The appellant, who was originally on deferred adjudication for promoting prostitution, admitted to ten violations. The court analyzed the case under the Anders framework, which requires an independent review of the record for nonfrivolous issues. The court held that because a 'plea of true' constitutes sufficient evidence standing alone to support an adjudication of guilt, the appeal was meritless. This ruling confirms that such admissions are legally conclusive, leaving no room for a defendant to challenge the evidentiary basis of the trial court's judgment.

Litigation Takeaway

"A criminal 'plea of true' is a powerful judicial admission that can be leveraged in family law litigation. If a parent admits to criminal violations in a criminal court, they are effectively barred from denying that conduct in a custody or divorce case, making it much easier to prove that their behavior is not in the child's best interest."

Family Violence & Protective Orders

Gannon v. The State of Texas

COA02

After Dayton Joseph Gannon was convicted of aggravated robbery for brandishing a knife and aggressively posturing toward a victim through a laundromat's glass door, he appealed, arguing that the threat of injury was not 'imminent' because the victim was armed and separated from him by a physical barrier. The Second Court of Appeals analyzed the statutory meaning of 'imminent'—defined as 'near, at hand, or on the verge of happening'—and determined that a threat is judged by the aggressor's volatility and conduct rather than the victim's defensive capabilities. The court held that the display of a deadly weapon combined with combative posturing is sufficient to establish an imminent threat, regardless of whether the victim has a weapon or is behind glass.

Litigation Takeaway

"A threat of family violence remains 'imminent' even if the victim takes defensive measures or is separated from the aggressor by a barrier; the legal focus is on the aggressor's display of weaponry and volatility rather than the victim's relative safety."

Property Division

EarnhartBuilt, LLC v. Preferred Materials, LLC, Procore Technologies, Inc., Express Lien, Inc. d/b/a Levelset, Michael Mann, and J. Earnhart, Inc.

COA05

In EarnhartBuilt, LLC v. Preferred Materials, LLC, a materials supplier filed a lien to collect $17,000 for concrete delivered to a construction project. The property owner sued, claiming the lien was "fraudulent" under Texas Civil Practice and Remedies Code Section 12.002 because it was filed after the statutory deadline. The Dallas Court of Appeals analyzed the "knowledge" and "intent" requirements of the statute, distinguishing between a lien that is merely legally invalid and one that is fraudulent. The court held that because the underlying debt for the materials was legitimate, the supplier did not have the requisite "actual knowledge" of fraudulence at the time of filing, even if the lien was procedurally defective. The court affirmed summary judgment in favor of the supplier.

Litigation Takeaway

"A lien is not "fraudulent" simply because it is legally unenforceable or filed late. To recover statutory damages for a fraudulent lien, a party must prove the filer actually knew the lien was fraudulent—meaning a misrepresentation of the truth—at the moment of filing. If there is a bona fide underlying debt, technical or procedural failures will generally not trigger the severe penalties of the fraudulent lien statute."

Westyn Gregory Whetstone v. The State of Texas

COA07

In Whetstone v. State, a defendant was convicted of Class B misdemeanor criminal trespass, but the trial court's written judgment incorrectly recorded the offense as a more serious Class A misdemeanor involving a habitation. On appeal, the Seventh Court of Appeals performed an independent review of the record and found that the State had explicitly abandoned the higher charge before the jury was instructed. Applying Texas Rule of Appellate Procedure 43.2(b), the court analyzed the discrepancy as a clerical error and held that it had a mandatory duty to reform the judgment to 'make the record speak the truth.' The court modified the judgment to reflect the correct statute and offense degree, ensuring the defendant's criminal history accurately reflected the actual adjudication.

Litigation Takeaway

"Always verify the underlying record of a criminal conviction used in family law litigation; clerical errors can 'inflate' a minor offense into a serious crime, potentially unfairly biasing a judge's decision regarding child custody or parental fitness."

EX PARTE BESSIE TEKILA MARTIN

COA02

In Ex parte Martin, the Second Court of Appeals addressed a double jeopardy challenge where a defendant claimed that out-of-county offenses were barred from prosecution because they had been 'taken into account' during a prior sentencing in another county under Texas Penal Code Section 12.45. While the court acknowledged that a valid Section 12.45 agreement bars subsequent prosecution for the admitted conduct, it found the record in this case insufficient to verify which specific offenses were included in the prior plea. Consequently, the court held that a defendant must provide a complete factual record—including the specific list of unadjudicated offenses—to sustain such a claim and remanded the case for further evidentiary development.

Litigation Takeaway

"In family law litigation, a spouse's criminal 'Judgment' is often just the tip of the iceberg; to effectively prove fault or waste of community assets, practitioners must subpoena the full 'plea packet' and the 'Section 12.45 list' to secure a binding judicial confession of the underlying misconduct."

Christopher Michael Green v. The State of Texas

COA05

In Green v. State, the Dallas Court of Appeals examined whether a trial court erred by admitting SANE (Sexual Assault Nurse Examiner) records of an unavailable victim during a criminal punishment phase. The defendant argued that admitting graphic forensic evidence without the victim's testimony was unfairly prejudicial under Rule 403 because he could not cross-examine the witness. The court analyzed the records' high probative value regarding the defendant's character and pattern of behavior, especially since the forensic evidence was linked to the defendant via DNA. The court held that the trial court did not abuse its discretion, ruling that forensic medical records are admissible to show a pattern of conduct even without live testimony from the victim.

Litigation Takeaway

"In high-conflict custody or termination cases, practitioners can leverage forensic 'paper trails'—like SANE or medical records—to prove a history of violence or bad character, even if the victims of those acts are unavailable or unwilling to testify in court."

Child Custody

Westyn Gregory Whetstone v. The State of Texas

COA07

In Whetstone v. State, a defendant was convicted of criminal trespass, but the written judgment erroneously labeled the offense as a Class A misdemeanor involving a 'habitation' despite the State having abandoned that specific allegation at trial. The Seventh Court of Appeals analyzed the record under Texas Rule of Appellate Procedure 43.2(b), which allows appellate courts to reform judgments to 'speak the truth' when they have the necessary information to do so. The court held that because the jury charge and sentencing only reflected a Class B offense, the written judgment contained a clerical error that must be reformed to reflect the actual adjudication.

Litigation Takeaway

"Never rely solely on the 'four corners' of a criminal judgment in custody litigation; clerical errors can incorrectly escalate a minor offense into a 'habitation' crime that triggers heightened scrutiny under the Texas Family Code. Always audit the underlying jury charge and trial records to ensure your client's criminal history is accurately represented and seek a reformation or judgment nunc pro tunc if errors are discovered."