Opinion Library

Oscar Antonio Rodriguez v. The State of Texas

COA14

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

Litigation Takeaway

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

Appeal and Mandamus

In re L.C.

COA12

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

Litigation Takeaway

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

In re The Commitment of Raul Eliss Dominguez

COA03

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

Litigation Takeaway

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

General trial issues

Erique Howard v. The State of Texas

COA14

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

Litigation Takeaway

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

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

COA03

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

Litigation Takeaway

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

Appeal and Mandamus

Norman v. Kahn Scheepvaart BV

COA14

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

Litigation Takeaway

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

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

COA14

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

Litigation Takeaway

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

Appeal and Mandamus

Diana Reismann Sexton v. Gilbert Sexton

COA14

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

Litigation Takeaway

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

Termination of Parental Rights

In the Interest of A.C. and E.C., Jr., Children

COA06

In a termination-of-parental-rights appeal from Gregg County, Mother challenged the legal and factual sufficiency of the evidence supporting the trial court’s predicate findings and best-interest determination. The Sixth Court of Appeals (Texarkana) applied the clear-and-convincing evidence standard and the Supreme Court’s modern sufficiency framework, emphasizing deference to the trial court’s credibility determinations and reasonable inferences while reviewing the entire record “holistically.” Because endangerment findings under Family Code § 161.001(b)(1)(D) and (E) have collateral consequences in future cases, the court conducted mandatory review of those challenged grounds and held the evidence legally and factually sufficient to prove (D) (endangering conditions/surroundings) and (E) (endangering conduct/course of conduct). The court also evaluated best interest under § 161.001(b)(2) using the Holley factors as nonexclusive guideposts and held the record supported the best-interest finding as to both parents (including Father, who challenged only best interest). The termination order was affirmed.

Litigation Takeaway

"Endangerment is proved—and sustained on appeal—through the cumulative story, not a single “bad fact.” If you’re pursuing or defending a termination (or litigating custody restrictions with endangerment themes), build and attack a record that ties specific unsafe conditions and a parent’s course of conduct to the child’s exposure to risk. Also, preserve and litigate grounds (D) and (E) directly: appellate courts must review challenged D/E findings, and those findings can follow a parent into future cases."

Family Violence & Protective Orders

Thomas Joseph Radford, Jr. v. The State of Texas

COA01

In Radford, the complainant testified she ingested Xanax supplied by the defendant, lost consciousness, and woke to find the defendant penetrating her while her clothing was displaced. The defendant immediately stopped and acted as if nothing had happened when she opened her eyes. On appeal from a sexual-assault conviction, the Houston First Court of Appeals applied the legal-sufficiency standard (viewing evidence in the light most favorable to the verdict) and focused on Texas Penal Code § 22.011(b)(3) and (5), which define “without consent” to include situations where the actor knows the complainant is unconscious/physically unable to resist or unaware the assault is occurring. The court rejected the argument that the complainant’s inability to describe the precise start of intercourse created an evidentiary gap; unconsciousness at the outset is itself affirmative proof of nonconsent under the statute. The court further held the jury could infer the defendant’s knowledge of nonconsent from circumstantial evidence and consciousness-of-guilt conduct, including that intercourse began while she was unconscious (after drugs he provided) and that he abruptly stopped and normalized the situation upon her awakening. The court affirmed, holding the evidence legally sufficient to prove both lack of consent and the defendant’s knowledge of nonconsent.

Litigation Takeaway

"When the evidence shows a person was unconscious or unaware at the outset, Texas law treats that incapacity as affirmative proof of “without consent”—the case does not fail just because the complainant cannot testify to what happened during unconsciousness. Knowledge/intent is commonly proven circumstantially; abrupt stopping, concealment, minimization, or “acting like nothing happened” can support an inference the actor knew the other person could not consent. In family-violence/SAPCR disputes, build the record around impairment, waking-condition details, and post-incident conduct to support findings even where memory is partial."