Opinion Library

Property Division

Shamsa v. Reagan

COA05

In Shamsa v. Reagan, a homeowner who acquired her property via a divorce decree sued her neighbor for adverse possession over a disputed boundary strip. The neighbor argued the homeowner lacked standing because the divorce decree contained a scrivener's error in the legal description of her own lot. The Dallas Court of Appeals analyzed constitutional standing, concluding that the right to assert title via adverse possession depends on the claimant's actual appropriation of the disputed land, not the perfection of the record title to their adjacent property. The court held that Reagan had standing and title to the strip, but reversed the award of attorney’s fees because Texas law does not provide a statutory basis for fees in adverse possession suits.

Litigation Takeaway

"Clerical errors in a divorce decree's property description do not automatically strip a party of the right to sue third parties for land ownership; however, clients should be prepared to bear their own legal costs in adverse possession cases as attorney's fees are generally not recoverable."

Appeal and Mandamus

In re Brandon Charles Cole

COA05

In this original proceeding, Relator Brandon Charles Cole challenged the trial court's denial of his motions to recuse via a petition for writ of mandamus. The Dallas Court of Appeals denied the petition, focusing on two primary issues: procedural non-compliance and the availability of an adequate remedy by appeal. The court found that Cole failed to provide a sworn or certified record as required by Texas Rules of Appellate Procedure 52.3 and 52.7. Substantively, the court held that under Texas Supreme Court precedent, the erroneous denial of a recusal motion does not satisfy the requirements for mandamus relief because the issue can be fully addressed through a direct appeal following a final judgment.

Litigation Takeaway

"In Texas civil and family law litigation, mandamus is generally unavailable to challenge a trial court's refusal to recuse. Practitioners must focus on meticulously perfecting the appellate record and preserving the bias issue for a post-judgment appeal rather than seeking mid-stream intervention."

Joseph Christopher Cole v. The State of Texas

COA12

In Joseph Christopher Cole v. The State of Texas, the Twelfth Court of Appeals addressed whether a trial court can assess court-appointed attorney’s fees against a defendant who had previously been found indigent. The court analyzed Texas Code of Criminal Procedure Article 26.04(p), which establishes a legal presumption that a party found indigent remains so for the remainder of the proceedings unless a "material change" in financial circumstances occurs. Because the record lacked any affirmative evidence that the defendant’s financial status had improved, the court held that the trial court lacked the authority to order reimbursement. Consequently, the appellate court modified the trial court's judgment to delete the assessment of attorney’s fees.

Litigation Takeaway

"The "once indigent, always indigent" presumption is a powerful shield; if you seek to recover court-appointed fees or ad litem costs from a party previously declared indigent, you must proactively build an evidentiary record demonstrating a "material change" in their financial resources before the final judgment is entered."

Divorce

In the Matter of the Marriage of Njipwo

COA07

In a Williamson County divorce case, the husband insisted that Cameroon law govern the property division. When the trial court rejected this, the husband explicitly requested on the record to discharge his attorney and signed a handwritten withdrawal order to proceed pro se. The trial court subsequently divided the marital estate based on unsworn property spreadsheets and attorney statements. On appeal, the husband challenged both the withdrawal of his counsel and the evidentiary basis of the property division. The Amarillo Court of Appeals affirmed the decree, holding that the "invited error" doctrine precluded the husband from complaining about a withdrawal he specifically requested. Additionally, the court found that the husband waived any objection to unsworn evidence by failing to object at trial and proceeding on an agreed factual basis.

Litigation Takeaway

"Be cautious when making mid-trial demands; once you explicitly request a procedural change—such as discharging your lawyer—or fail to object to the use of unsworn property summaries, the "invited error" and waiver doctrines may permanently bar you from challenging those issues on appeal."

Pesca Holding LLC v. Skoldeberg

COA04

In Pesca Holding LLC v. Skoldeberg, a jury trial was held regarding alleged fraud in a business sale. Although the defendants prevailed on the liability claims, they failed to include a question about attorney’s fees in the jury charge. The trial court, believing an informal agreement to bifurcate the issues existed, later convened a second jury trial specifically for fees. On appeal, the San Antonio Court of Appeals analyzed whether a party waives attorney's fees by failing to submit them to the initial factfinder. The court held that because attorney’s fees are questions of fact for the jury, they are waived unless the record contains a clear and unambiguous bifurcation agreement, such as a written Rule 11 agreement. Finding no such agreement in the record, the court reversed the $800,000 fee award and rendered a take-nothing judgment.

Litigation Takeaway

"Never rely on an informal or "handshake" agreement to handle attorney’s fees after a jury trial; if the fee question isn't in the jury charge and you don't have a signed Rule 11 agreement to bifurcate, you waive your right to fees the moment the jury is discharged."

Benavidez v. State

COA04

In Benavidez v. State, the defendant was convicted of sexual assault and appealed his sentence on the grounds that the prosecutor improperly commented on his failure to testify by stating he 'couldn’t even take that stand' to take responsibility. The Fourth Court of Appeals analyzed the issue under Texas Rule of Appellate Procedure 33.1 and the precedent set in Cockrell v. State, which requires a timely objection to preserve error for appellate review. The court held that because the defense failed to object during the closing argument, the complaint was forfeited. Furthermore, the court reaffirmed that Texas no longer recognizes an 'incurable argument' exception, meaning even egregious constitutional violations in jury arguments are waived without a contemporaneous objection.

Litigation Takeaway

"Never rely on the 'incurable' nature of an opponent’s error to save you on appeal; if you do not object to an improper comment during closing arguments—such as a parent’s 'failure to take responsibility' or choice to remain silent—you waive that error entirely. To fully protect the record, you must object timely, request an instruction to disregard, and move for a mistrial."

Family Violence & Protective Orders

Bess v. State

COA01

Kendrick Bess appealed his conviction for aggravated assault of a family member, asserting that the trial judge's active participation—including questioning witnesses and summarizing testimony—deprived him of a fair trial and demonstrated judicial bias. The First Court of Appeals first addressed whether the appeal was 'multifarious' for combining multiple legal theories into one point of error, concluding that appellate courts have the discretion to review such issues in the interest of justice if the complaint is discernable. On the merits, the court analyzed the judge's conduct under the 'Liteky' standard, finding that the interventions were intended for clarification and courtroom administration rather than advocacy. The court held that a judge's active role does not violate due process unless it reveals such a high degree of favoritism or antagonism as to make fair judgment impossible.

Litigation Takeaway

"Trial judges are permitted wide latitude to question witnesses and manage their courtrooms; to successfully challenge a judge's impartiality on appeal, a party must show that the judge’s actions revealed deep-seated favoritism or extrajudicial bias rather than mere impatience or a desire for clarification."

Kapasi v. Villarreal

COA14

In this case, Ashrafi Kapasi sued Stalina Villarreal over a motor vehicle accident. Villarreal eventually filed a no-evidence motion for summary judgment under Rule 166a(i), asserting Kapasi lacked evidence for essential elements of the claims. Kapasi did not file a response but argued that her prior request for a jury trial and payment of the jury fee preserved her right to a trial. The Fourteenth Court of Appeals analyzed Rule 166a(i) and the Texas Constitution, determining that the right to a jury trial is not absolute but contingent upon the existence of a material fact issue. The court held that a trial court must grant a no-evidence motion for summary judgment if the non-movant fails to produce evidence raising a genuine issue of fact, regardless of a pending jury demand.

Litigation Takeaway

"A jury demand is not a shield against summary judgment; failing to file a timely, evidence-backed response to a no-evidence motion will result in the mandatory dismissal of your claims, even if you have paid for a jury."

Evidence

In the Matter of the Expunction of K.J.

COA08

After K.J. was indicted for causing injury to a child, the State dismissed the charges due to 'insufficient evidence' and K.J.'s completion of a parenting class. K.J. subsequently sought an expunction of the records. The El Paso Court of Appeals reversed the trial court's grant of the expunction, clarifying that 'insufficient evidence' is not legally equivalent to the statutory requirements of 'mistake, false information, or lack of probable cause' needed for an expunction. The court held that because expunction is a statutory privilege and not an equitable right, the petitioner failed to meet the strict evidentiary burden required to scrub the criminal record.

Litigation Takeaway

"A criminal dismissal for 'insufficient evidence' does not automatically entitle a party to an expunction. For family law practitioners, this means that unless an opponent can prove factual innocence or mistake in an expunction hearing, their history of arrests or indictments for child abuse remains accessible and admissible for 'best interest' analyses in custody disputes."

Allen v. State

COA14

In a human trafficking appeal with significant procedural implications for family law litigators, the Fourteenth Court of Appeals addressed issues regarding evidence suppression, impeachment by prior convictions, and jury unanimity. The defendant argued the trial court failed to rule on a second motion to suppress and erred in its evidentiary and jury charge rulings. The appellate court analyzed the record under the principle that a signed written order controls over oral announcements and evaluated the jury charge under the 'Almanza' egregious harm standard. The court held that the written order constituted a valid ruling, the admission of prior convictions for impeachment was within the trial court's discretion, and the lack of a unanimity instruction did not cause egregious harm, ultimately affirming the conviction.

Litigation Takeaway

"To preserve error for appeal, always ensure a signed written order is entered, as it overrides ambiguous oral statements from the bench; furthermore, in credibility-heavy trials like SAPCRs or protective order hearings, litigators must proactively request specific jury instructions or findings of fact to avoid the near-insurmountable 'egregious harm' standard for unpreserved charge errors."